# XXL of Ohio, Inc. v. City of Broadview Heights

> District Court, N.D. Ohio · January 13, 2004 · 341 F. Supp. 2d 765

URL: https://www.frixlaw.com/law-library/cases/2458684

## Case

- **Full name:** XXL OF OHIO, INC., Plaintiffs, v. CITY OF BROADVIEW HEIGHTS, Et Al., Defendants/Third Party Plaintiff
- **Court:** District Court, N.D. Ohio
- **Decided:** January 13, 2004
- **Citations:** 341 F. Supp. 2d 765; 2004 U.S. Dist. LEXIS 22736; 2003 WL 23219809
- **Precedential status:** Published
- **Opinion:** Opinion by Matia
- **Judges:** Matia
- **Cited by:** 9 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/2458684

## How later opinions describe it (automated extraction)

- holding that aesthetics and neighborhood preservation are not sufficiently compelling interests to withstand strict scrutiny analysis
- rejecting billboard company’s vagueness challenge to “stated objectives of the sign ordinance and the determinations in support of the ordinance” because they “mandate or prohibit nothing”
- observing that if an applicant seeks an injunction to prevent enforcement of the sign ordinance, the burden of proof is on the party seeking the injunction

## Opinion text

MEMORANDUM OF OPINION AND ORDER
.
MATIA, Chief Judge.
This action is before the Court upon Magistrate Judge Patricia A: Hemann’s Report and Recommendation (Doc. 85).
It is not necessary to duplicate Magistrate Judge Hemann’s thorough and exhaustive review of the law here. The Court, after lengthy
de novo
consideration of the objections filed by the defendants (Doc. 87) and the plaintiff (Doc. 89), overrules said objections and approves and adopts the report and recommendation— with two exceptions.
The Court does not agree with the magistrate judge’s recommendation that the defense of qualified immunity should not be available to the mayor and members of the city council of Broadview Heights. “[T]o find a clearly established constitutional right, a district court must find binding precedent by the Supreme Court, its court of appeals or itself.”
Ohio Civil Serv. Employees Ass’n v. Seiter,
858 F.2d 1171, 1177 (6th Cir.1988). “For a right to be clearly established, ‘[t]he contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.’ ”
Centanni v. Eight Unknown Officers, 15
F.3d 587, 588 (6th Cir.) (quoting
Anderson v. Creighton,
483 U.S. 635, 640 , 107 S.Ct. 3034 , 97 L.Ed.2d 523 (1987)),
cert. denied,
512 U.S. 1236 , 114 S.Ct. 2740 , 129 L.Ed.2d 860 (1994).
The Court finds that the law was not— indeed, is not — clearly established in this area.' Although a prior case in this district struck down a similar ordinance,
North Olmsted Chamber of Commerce v. City of North Olmsted,
86 F.Supp.2d 755 (N.D.Ohio 2000), there has been no decision by the Court of Appeals for the Sixth Circuit. In fact, certain aspects of the
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Broadview Heights sign code were previously upheld by this Court.
Sims v. City of Broadview Heights,
No. 1:91cv1070 (N.D. Ohio filed March 11,1993),
rev’d and remanded,
41 F.3d 1507 , 1994 WL 637806 (6th Cir. Nov.14, 1994), No. 1:91cv1070 (N.D. Ohio filed Aug. 7, 1995),
appeal dism’d per stipulation,
No. 95-3957 (6th Cir. filed June 10, 1997). Additionally, other district courts have disagreed with the
North Olmsted
analysis.
E.g., Granite State Outdoor Advertising, Inc. v. City of Clearwater, Florida,
213 F.Supp.2d 1312, 1328 (M.D.Fla.2002),
affd in part, rev’d in part, and remanded,
351 F.3d 1112 (11th Cir.2003). Thus it cannot be said that the law was clearly established when the city officials took the action that led to this complaint.
The Court also declines to overturn Chapter 1479 of the Certified Ordinances of Broadview Heights (“the sign ordinance” or “the ordinance”)
en toto
or order the alteration of the ordinance. The undersigned doesn’t think a judge should order a legislative body to alter an ordinance. The magistrate judge has indicated how the sign ordinance could be changed to pass constitutional muster,
1
but the decision whether to do so is properly left to the council.
Moreover, this Court wishes to make it perfectly clear that it does not agree with the current state of the law with respect to First Amendment protection for commercial speech. However, the Court is bound to follow Supreme Court interpretations, no matter how mistaken they may be. Accordingly,
1.Plaintiffs motion for summary judgment (Doc. 57) is GRANTED and defendants’ motion for summary judgment (Doc. 67) is DENIED as to the following claims:
a.the ordinance unconstitutionally restricts non-commercial speech and im-permissibly discriminates as to non-commercial speech according to its content;
b. the ordinance impermissibly discriminates as to commercial speech according to content;
c. the ordinance is an impermissible prior restraint of speech;
d. the selective prohibition on pole signs in the sign ordinance makes impermissible content-based distinctions; and
e. The City of Broadview Heights violated the plaintiffs right to procedural due process in removing the pole sign.
2. Defendants’ motion for summary judgment (Doc. 67) is GRANTED as to the plaintiffs claim that Broadview Heights’ application of the sign ordinance violates the equal protection clause.
3. Plaintiffs motion for summary judgment (Doc. 57) is GRANTED IN PART and defendants’ motion for summary judgment (Doc. 67) is GRANTED IN PART as to:
a. the plaintiffs claim that certain terms in the ordinance are void for vagueness (as described on pp. 806-08 of the Report and Recommendation); and
b. the plaintiffs claim that the sign ordinance facially violates the equal protection clause (as described on pp. 810-12 of the Report and Recommendation).
4. The Court declines to rule on the arguments regarding whether Broadview Heights’ sign ordinance violates Ohio’s ban on retroactive zoning changes because they involve issues of state law made moot by the Court’s resolution of the plaintiffs federal claims.
5. The named individual defendants are entitled to qualified immunity.
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6. Plaintiffs motion for summary judgment (Doc. 57) and defendants’ motion for summary judgment (Doc. 67) are DENIED as to all other claims.
IT IS SO ORDERED.
REPORT AND RECOMMENDATION
Docket ## 57, 67
HEMANN, United States Magistrate Judge.
I. Outline
Magistrate judge jurisdiction.
Background.
General questions of law.
First Amendment claims .
Standing and overbreadth.
Standards of review.
Non-commercial speech .
Content-based restrictions on non-commercial speech.
Content-neutral restrictions on non-commercial speech.
Commercial speech.
The ordinance and content discrimination.
Content discrimination in the ordinance and non-commercial speech
Content-based restrictions on speech in the ordinance.
The extent of content-based restrictions on non-commercial speech Content-based restrictions on non-commercial speech and strict
review. *q OO
ZD
Content discrimination in the ordinance and commercial speech. -q CD to
Standard of review. -q CD to
Restrictions on commercial speech and the time, place, and manner test. -q
zo
to
Content-based restrictions on commercial speech . -q
zo
to
Content-based restrictions on commercial speech not narrowly tailored.
The ban on pole signs.
The ordinance and prior restraint.'.
Permits and prior restraint.
The permit scheme in Broadview Heights’ sign ordinance.
Broadview Heights’ sign ordinance as a system of prior restraint ..
Severability.
The standard for severability.
Severability and violations of the First Amendment in the ordinance
Conclusions .
Vagueness claim.
The standard for determining impermissible vagueness.
Vagueness in the sign ordinance .
Severability of impermissibly vague terms.
Conclusions .
Equal protection claims .
Alleged facial violation of the equal protection clause.
Alleged violation of the equal protection clause as applied ....
Severance .
Conclusions .
Due process claim.
Standing and ripeness.
Process in the sign ordinance.
Removal of XXL’s pole sign and procedural due process.
Retroactive zoning.
Individual liability for city officials.
Pleading individual liability for municipal officials.:.
Whether XXL has sufficiently pleaded individual responsibility.
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Liability for individual defendants.818
The standard for qualified immunity .819
Qualified immunity and the individual defendants.820
Conclusion.824
II. Magistrate judge jurisdiction
This case is before the magistrate judge on referral. Pending is the motion of plaintiff, XXL of Ohio, Inc. (“XXL”), for summary judgment (“PI. mot.”; Docket # 57). Defendants, the City of Broadview Heights (“Broadview Heights” or “the city”) and past and present city officials, oppose this motion. Also pending before the court is the motion of defendants for summary judgment (“Def. mot.”; Docket # 67). For the reasons given below the magistrate judge recommends that the court grant plaintiffs motion in part and overrule it in part and grant defendants’ motion in part and overrule it in part.
III. Background
Plaintiff, XXL, is an Ohio corporation which owns and operates a Tallyho Motel (“the motel”) in Broadview Heights. The motel is located on State Route 82 and is about a tenth of a mile from Interstate 77 (“1-77”). This case is before the court because, pursuant to the city’s sign ordinance, Broadview Heights has refused to allow XXL to retain its current signage. Defendants are Broadview Heights, the mayor of Broadview Heights, and all members of the city’s council at the time the city refused to allow XXL to retain its signage.
Broadview Heights adopted a comprehensive sign ordinance (“the sign ordinance” or “the ordinance”) on November 5, 1990. Certified Ordinances of Broadview Heights (“C.O.B.H.”) Ch. 1479. The sign ordinance expresses certain objectives to be achieved by the ordinance as enacted:
This chapter is established to control the type, design, size, location and maintenance of signs in order to achieve the following objectives:
(1) To promote and maintain high quality residential districts and attractive public facilities;
(2) To provide for appropriate signs for identifying business by relating the size, type and design of signs to the type, size and nature of the establishment;
(3) To control the design and size of all signs so that they will be harmonious with their surrounding areas;
(4) To provide a safe environment by eliminating any conflict between advertising or identification signs and traffic control signs which would be hazardous to the safety of the public;
(5) To control temporary signs and prohibit undesirable impacts on property values and neighborhood character; and
(6) In business districts, to provide for appropriate signs for advertising goods or services rendered in keeping with the type of establishment involved.
C.O.B.H. § 1479.01(a). The sign ordinance also incorporates certain conclusions as justification for the ordinance:
[T]he City has determined that, without adequate regulation and design standards, signs are a nuisance. The number of signs in Broadview Heights is excessive and is unduly distracting to motorists and pedestrians, creates a traffic hazard, and in some places reduces the effectiveness of signs needed to direct the public. As the appearance of the City is marred by the excessive number, oversized and poorly designed signs, both residential and business property values are adversely affected. Therefore, the number of such distract
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ing signs ought to be reduced and signs permitted should comply with the standards of this chapter in order to reduce the aforementioned effects.
(1) The signs of least value to the people of Broadview Heights are those which carry commercial messages other than the advertisement of any product, service, event, person, institution or business located on the premises where the sign is located.
(2) In view of the foregoing, all signs not conforming with the provisions of this chapter are hereby declared a nuisance. It is further declared that the regulations contained in this chapter are the minimum regulation necessary to abate the nuisance and to achieve the purposes of this chapter.
C.O.B.H. § 1479.01(b).
The sign ordinance governs commercial and non-commercial signs. It classifies signs by use type and structural type, and the classification “use type” is further divided into permanent and temporary signs:
(1)
Permanent signs.
A. Billboard. One which directs attention to a specific business, product, service, entertainment or other activity sold, offered or conducted elsewhere than upon the same lot on which the sign is located.
B. Bulletin board. An announcement sign which directs attention to and is located on the lot which is the subject of said sign.
C. Directional sign. One indicating the direction pedestrian or vehicular traffic is requested to move on that location.
D. Identification sign. One indicating the name and address of a building, development, public or semipublic facility, business, office or industrial establishment. Such signs may also include the names of tenants, general type of goods sold, or services rendered; however, the listing of specific goods or services, brand names, prices, “sale” or telephone numbers shall not be permitted.
E. Information signs. One which presents miscellaneous information intended to serve the public. Typical signs present travel information, vehicle service, weather, time, historic and scenic sites, recreation facilities, etc. An informational sign may be permitted in any district upon approval of the Planning Commission.
F. Nameplate. One which indicates the name, address or profession of a person or persons occupying a building or unit of a building.
G. Handicapped parking. A sign indicating a parking area reserved for a vehicle exhibiting a State issued disabled persons parking permit or license plate. The sign shall be at eye level, blue with the standard white profile of a wheelchair and occupant in the center. The sign may also include the warning statement “Unauthorized vehicles will be towed away at the owners [sic] expense.”
(2)
Temporary signs.
A. Project sign. One indicating the promotion, development and construction on the property on which it is located, and which sign may include the owner, architects, engineers, contractors and other individuals or firms involved with the construction.
B. Real estate sign. A ground sign calling attention to rental, sale or lease of property where it is posted.
C. Sale sign. A window sign, such as “sale,” “special,” “clearance,”
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symbolic or graphic signs, such as a red heart for Valentine’s Day, or identifying prices and/or items for sale.
D. Special event sign. One which may be in the street right of way announcing a public function.
E. Specific product sign. One which only indicates a specific class of products or product from a company.
F. Temporary directional sign. A ground sign directing vehicular or pedestrian traffic to a temporary activity taking place at another, but nearby, location, such as an open house sign for the sale of real estate.
G. Political sign. A sign referring to a political contest, involving candidates and/or issues.
H. Temporary identification sign. A sign indicating the name and address of a building, development, public or semipublic facility, business, office or industrial establishment.
C.O.B.H. § 1479.03(a).
The sign ordinance sets forth where, when, and how signs may be erected and maintained according to use and structural type and requires a permit “to erect, place, paint, relocate or alter” any permanent or temporary sign except certain temporary signs. C.O.B.H. § 1479.13. One provision of the sign ordinance bans pole signs. C.O.B.H. § 1479.07(e).
The sign ordinance as originally enacted required the removal of all nonconforming signs by November 5, 1995. This deadline was later extended to November 5, 1996. The current version of the ordinance requires the removal of nonconforming signs, including those signs which existed and were permitted prior to passage of the sign ordinance, “at any time that the ownership of the underlying business or activity to which the sign refers is changed and/or at such time that a change of fascia of the sign is requested.” C.O.B.H. § 1479.15(c). The city may remove a nonconforming sign as a nuisance if the sign’s owner fails to remove the sign when ordered to do so by the Building Commissioner. C.O.B.H. §§ 1479.14 & 1479.19.
Plaintiffs signage included a pole sign visible from 1-77 and a second pole sign not visible from the highway. The second pole sign was shared with a restaurant owned by Arnold Davis (“Davis”) and located in front of the motel. These signs predated passage of the sign ordinance and are nonconforming signs under the ordinance. Plaintiff bought the motel after passage of the sign ordinance and changed the fascia of the motel’s signs to reflect the new name of the hotel.
On August 20, 2000, after the transfer of ownership of the hotel and a change of fascia of the signs at the motel, the city began issuing citations to XXL for violations of the sign ordinance and demanded that XXL remove the hotel’s nonconforming signs. XXL filed the instant action challenging the sign ordinance on November 1, 2001. XXL alleges that the sign ordinance is unconstitutional under the First, Fifth, and Fourteenth Amendments and violates Ohio law. Defendants deny these allegations. XXL seeks an order permanently enjoining enforcement of the sign ordinance. XXL also seeks $2,500,000 and costs and expenses, including reasonable attorney fees, pursuant to 42 U.S.C. § 1983 (§ 1983).
On November 14, 2001 the court entered an order which,
inter alia,
prohibited XXL from erecting any new signs for the motel and requiring that defendant Broadview Heights “shall not remove or dismantle nor cause or attempt to cause the removal or dismantling of the sign(s) referred to in the Complaint due to any noncompliance
*777
with the Codified Ordinances.... ” Order (Docket # 19), pp. 1-2. On November 13, 2002, Davis removed the pole sign that his restaurant shared with the motel. Davis effected this removal upon order of the Broadview Heights Building Commissioner.
XXL moves for summary judgment on five grounds: (1) the ordinance impermis-sibly restricts speech protected by the First Amendment and the Ohio Constitution, (2) provisions in the ordinance are void for vagueness, (3) the ordinance violates the equal protection clause of the Fourteenth Amendment, (4) section 1479.14 of the ordinance violates procedural due process, and (5) the ordinance violates Ohio’s protections against retroactive zoning.
1
XXL further claims that the unconstitutional provisions of the ordinance are not severable from the constitutional provisions and moves the court to overturn the entire ordinance. Defendants oppose XXL’s motion and move for summary judgment on XXL’s claims.
IV. General questions of law
Summary judgment “shall be rendered if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law.”
Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 247, 106 S.Ct. 2505 , 91 L.Ed.2d 202 (1986);
see also Celotex Corp. v. Catrett, 477
U.S. 317, 322, 106 S.Ct. 2548 , 91 L.Ed.2d 265 (1986). The moving party must demonstrate to the court through reference to pleadings and discovery responses the absence of a genuine issue of material fact.
Celotex, 477
U.S. at 323, 106 S.Ct. 2548 . The nonmov-ing party must then show the existence of a material fact which must be tried. Id. at 324 , 106 S.Ct. 2548 .
When evaluating a motion for summary judgment, “the inferences to be drawn from the underlying facts ... must be viewed in the- light most favorable to :.. the party opposing the motion.... ” United
States v. Diebold, Inc.,
369 U.S. 654, 655 , 82 S.Ct. 993 , 8 L.Ed.2d 176 (1962);
see also Poller v. Columbia Broad. Sys., Inc.,
368 U.S. 464, 473 , 82 S.Ct. 486 , 7 L.Ed.2d 458 (1962);
Aetna Ins. Co. v. Loveland Gas & Elec. Co.,
12 Ohio Misc. 230 , 369 F.2d 648 (6th Cir.1966). This includes taking the nonmoving party’s un-contradieted allegations as true and giving the benefit of the doubt to the nonmoving party’s assertions when they conflict with those of the movant.
Bishop v. Wood,
426 U.S. 341 , 96 S.Ct. 2074 , 48 L.Ed.2d 684 (1976);
Bosely v. City of Euclid,
496 F.2d 193, 197 (6th Cir.1974).
• The court’s treatment of facts and inferences in a light favorable to the nonmoving party does not relieve that party of its obligation “to go beyond the pleadings” to oppose an otherwise properly supported motion for summary judgment under Rule 56(e).
See Celotex, 477
U.S. at 324, 106 S.Ct. 2548 . The nonmoving party must oppose a proper summary judgment motion “by any of the kinds of evidentiary material listed in Rule 56(c), except the mere pleadings themselves.... ”
Id. A
scintilla of evidence in favor of the non-moving party is not sufficient. There must be enough evidence that a reasonable jury could find for the nonmoving party.
Street v. J.C. Bradford & Co.,
886 F.2d 1472, 1477 (6th Cir.1989).
V. First Amendment claims
2
XXL alleges that Broadview Heights’ sign ordinance as enacted violates the
*778
First Amendment in three ways: (1) in discriminating according to content; (2) in banning pole signs, and (3) in acting as a prior restraint on speech.
3
XXL claims that these violations improperly burden both commercial and non-commercial speech. Broadview Heights denies that its ordinance impermissibly discriminates according to content or acts as a prior restraint on speech and denies that its ban on all pole signs offends the First Amendment. Broadview Heights further argues that XXL lacks standing to assert alleged violations of the First Amendment with regard to non-commercial speech. XXL replies that it has standing to assert claims regarding non-commercial speech because it has posted and wishes to post in the future non-commercial messages and because it has standing by virtue of the doctrine of overbreadth. The magistrate judge will first examine the question of XXL’s standing to allege First Amendment violations as regards non-commercial speech, then will examine the merits of XXL’s claims, beginning with consideration of the relevant standards of review.
A
Standing and overbreadth
In addition to XXL’s claims that Broad-view Heights’ sign ordinance is unconstitutional as applied to XXL, XXL claims that the ordinance is facially overbroad. That is, XXL claims that on its face Broadview Heights’ sign ordinance burdens speech which is constitutionally protected.
As a rule “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,
458 U.S. 747, 767 , 102 S.Ct. 3348 , 73 L.Ed.2d 1113 (1982). An exception to this rule is a challenge to laws and regulations on the ground that they are facially over-broad under the First Amendment. Such a challenges contends that “an otherwise valid law might be applied unconstitutionally in a specific context.”
Amelkin v. McClure,
205 F.3d 293, 296 (6th Cir.2000). “Where an overbreadth attack is successful, the statute is obviously invalid in all of its applications, since every person to whom it is applied can defend on the basis of the same overbreadth.”
Board of Trustees of the State Univ. of New York v. Fox,
492 U.S. 469, 483 , 109 S.Ct. 3028 , 106 L.Ed.2d 388 (1989).
The overbreadth exception to the general rule that a litigant may not defend the rights of other parties is warranted because “the transcendent value to all society of constitutionally protected expression is deemed to justify allowing ‘attacks on overly broad statutes with no requirement that the person making the attack demonstrate that his own conduct could not be regulated by a statute drawn with the requisite narrow specificity.’ ”
Gooding v. Wilson,
405 U.S. 518, 520-521 , 92 S.Ct.
*779
1103, 31 L.Ed.2d 408 (1972) (quoting
Dombrowski v. Pfister,
380 U.S. 479, 486 , 85 S.Ct. 1116 , 14 L.Ed.2d 22 (1965)). The exception ensures that persons who decline to engage in constitutionally-protected speech for fear of punishment may nonetheless have their First Amendment rights vindicated.
Gooding,
405 U.S. at 520-521 , 92 S.Ct. 1103 ;
see also Los Angeles Police Dep’t v. United Reporting Publ’g Corp.,
528 U.S. 32, 39 , 120 S.Ct. 483 , 145 L.Ed.2d 451 (1999).
Courts use the overbreadth doctrine reluctantly. “Because of the wide-reaching effects of striking down a statute on its face at the request of one whose own conduct may be punished despite the First Amendment, we have recognized that the overbreadth doctrine is ‘strong medicine’ and have employed it with hesitation, and then ‘only as a last resort.’ ”
Ferber,
458 U.S. at 769 , 102 S.Ct. 3348 (citing
Broadrick v. Oklahoma,
413 U.S. 601, 613 , 93 S.Ct. 2908 , 37 L.Ed.2d 830 (1973)). A statute should be construed to avoid constitutional problems if the statute is subject to such a limiting construction. If the statute is not subject to a narrowing construction, only the unconstitutional portion of the statute should be invalidated if it is severable from the rest of the statute.
Ferber,
458 U.S. at 769 n. 24, 102 S.Ct. 3348 . If the statute cannot be construed to avoid constitutional problems and if the impermissible portion of the statute is not severable, then the overbreadth must be substantial before a statute will be invalidated on its face.
Id.
at 770-73 , 102 S.Ct. 3348 .
A statute which affects both speech and conduct will be invalidated under this doctrine only if the statute’s overbreadth is real and substantial in relation to its “plainly legitimate sweep.”
Id.,
458 U.S. at 769-70 , 102 S.Ct. 3348 . Overbreadth is real and substantial when there is “a realistic danger that the ordinance itself will significantly compromise recognized First Amendment protections of parties not before the Court.”
Members of City Council v. Taxpayers for Vincent,
466 U.S. 789, 801 , 104 S.Ct. 2118 , 80 L.Ed.2d 772 (1984).
The overbreadth doctrine is inapplicable when the entire scope of an ordinance restricts only commercial speech.
Village of Hoffman Estates v. The Flipside, Hoffman Estates, Inc.,
455 U.S. 489, 496-97 , 102 S.Ct. 1186 , 71 L.Ed.2d 362 (1982). When an ordinance restricts both commercial and non-commercial speech, however, a party whose purely commercial speech has been sanctioned may assert the non-commercial speech rights of others by using the overbreadth doctrine.
Fox,
492 U.S. at 481-82 , 109 S.Ct. 3028 ;
Metromedia, Inc. v. City of San Diego,
453 U.S. at 504 n. 11, 101 S.Ct. 2882 , 69 L.Ed.2d 800 (1981).
Broadview Heights’ sign ordinance affects both commercial and non-commercial speech.
See, e.g.,
C.O.B.H. § 1479.07(a) (prohibiting certain types of signs for purposes of advertising)
and
C.O.B.H. § 1479.19 (governing the removal of political signs). Thus, even though only XXL’s commercial speech is at issue in the instant case, XXL may assert the noncommercial speech rights of others by using the overbreadth doctrine.
The ordinance affects both speech and conduct. The ordinance affects the erection of a sign as well as the display of a flag, acts which are intended to communicate.
See United States v. Grace,
778 F.2d 818, 821 (D.C.Cir.1985);
Wooley v. Maynard,
430 U.S. 705 , 713 n. 10, 97 S.Ct. 1428 , 51 L.Ed.2d 752 (1977);
see also American Legion Post 7 v. City of Durham,
239 F.3d 601 (4th Cir.2001) (finding the flying of the flag to be expressive conduct);
Dimmitt v. City of Clearwater,
985 F.2d 1565, 1569 (11th Cir.1993) (find
*780
ing a sign ordinance which “applies to virtually any form of graphic communication that is publicly displayed” to reach expressive conduct). The ordinance affects both purely expressive aspects of signs
4
and the purely physical aspects of signs.
5
Because the ordinance affects both speech and conduct, the court may invalidate the ordinance on its face only if the ordinance’s overbreadth, if any, is real and substantial.
Finally, because XXL applies the over-breadth doctrine to challenge portions of the statute not otherwise at issue in the instant case, the court must construe the ordinance so as to avoid constitutional problems, must sever any unconstitutional portion of the ordinance if severance is possible, and, if severance is not possible, may invalidate the ordinance on its face only if the overbreadth is substantial.
B. Standards of review
The standard of review for weighing alleged violations of the First Amendment’s Free Speech clause depends upon whether the restricted speech is non-commercial or commercial speech and whether the claimed unconstitutional restrictions are content-based or content-neutral.
1. Non-commercial speech
Generally, an ordinance may not impose greater restrictions on non-commercial speech than on commercial speech.
Metromedia,
453 U.S. at 514-17 , 101 S.Ct. 2882 . In determining whether other restrictions on non-commercial speech are permissible, a court must consider whether the restrictions are content-based or content-neutral.
a. Content-based restrictions on noncommercial speech
With few exceptions, “[rjegula-tions which permit the Government to discriminate on the basis of the content of the message cannot be tolerated under the First Amendment.”
Regan v. Time, Inc.,
468 U.S. 641, 648-649 , 104 S.Ct. 3262 , 82 L.Ed.2d 487 (1984). The Supreme Court uses several measures to determine whether a restriction on speech is content-based or content-neutral. A law imposes content-based restrictions on speech when “the very basis for the regulation is the difference in content....”
City of Cincinnati v. Discovery Network, Inc.,
507 U.S. 410, 429 , 113 S.Ct. 1505 , 123 L.Ed.2d 99 (1993);
see also United States v. Playboy Entm’t Grp., Inc.,
529 U.S. 803, 811 , 120 S.Ct. 1878 , 146 L.Ed.2d 865 (2000). A regulation is not content-neutral merely because it does not discriminate between viewpoints on a particular subject.
See Boos v. Barry,
485 U.S. 312, 319 , 108 S.Ct. 1157 , 99 L.Ed.2d 333 (1988). A regulation which imposes restrictions based upon the particular viewpoint or information in the speech or imposes restrictions based upon the general subject matter of the speech imposes content-based restrictions.
See Rosenberger v. Rector & Visitors of the Univ. of Virginia,
515 U.S. 819, 828-29 , 115 S.Ct. 2510 , 132 L.Ed.2d 700 (1995);
Playboy Entm’t,
529 U.S. at 811-12 , 120 S.Ct. 1878 ;
Boos,
485 U.S. at 318 , 108 S.Ct. 1157 ;
Consolidated Edison Co. of New York, Inc. v. Public Serv. Comm’n,
447 U.S. 530, 537-38 , 100 S.Ct. 2326 , 65 L.Ed.2d 319 (1980) (“To allow a government the choice of permissible subjects for public debate would be to allow that gov-
*781
eminent control over the search for political truth.”).
6
Also, a regulation which imposes restrictions based upon the identity of the speaker imposes content-based restrictions.
Rosenberger,
515 U.S. at 828-29 , 115 S.Ct. 2510 , 132 L.Ed.2d 700 (1995) (“In the realm of private speech or expression, government regulation may not favor one speaker over another.”). Further, an otherwise content-neutral regulation which has incidental effects which burden some or all speech must be “justified without reference to the content of the regulated speech.... ”
Ward v. Rock Against Racism,
491 U.S. 781, 791 , 109 S.Ct. 2746 , 105 L.Ed.2d 661 (1989);
Clark v. Community for Creative Non-Violence,
468 U.S. 288, 293 , 104 S.Ct. 3065 , 82 L.Ed.2d 221 (1984);
Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc.,
425 U.S. 748, 771 , 96 S.Ct. 1817 , 48 L.Ed.2d 346 (1976).
7
Otherwise, the regulation will be deemed a contenUbased regulation of speech. Finally, a regulation aimed at the secondary effects of sexually-explicit speech is content-neutral even if the regulation distinguishes the speech by its sexual content as long as the regulation is not justified by reference to the content of the speech.
Connection Distrib. Co. v. Reno,
154 F.3d 281, 290-91 (6th Cir.1998).
8
When a regulation imposes content-based restrictions on speech, the regulation is constitutional only if it passes the test of strict scrutiny:
Under the strict-scrutiny test, respondents have the burden to prove that the [regulation] is (1) narrowly tailored, to serve (2) a compelling state interest. In order for respondents to show that the
*782
[regulation] is narrowly tailored, they must demonstrate that it does not “unnecessarily circumscrib[e] protected expression.”
Republican Party of Minnesota,
536 U.S. 765, 773-77 , 122 S.Ct. 2528, 2534-35 , 153 L.Ed.2d 694 (2002) (citations omitted) (quoting
Brown v. Hartlage,
456 U.S. 45, 54 , 102 S.Ct. 1523 , 71 L.Ed.2d 732 (1982)). Narrow tailoring of remedies requires that “[i]f a less restrictive alternative would serve the Government’s purpose, the legislature must use that alternative. To do otherwise would be to restrict speech without an adequate justification, a course the First Amendment does not permit.”
Playboy Entm’t,
529 U.S. at 813 , 120 S.Ct. 1878 (citations omitted).
b. Content-neutral restrictions on noncommercial speech
When a regulation imposes content-neutral restrictions on speech, courts evaluate the constitutionality of the regulation using an intermediate level of scrutiny, rather than the strict level of scrutiny appropriate to content-based restrictions. Two tests are generally used to enact intermediate scrutiny: a time, place, and manner test and the four-part test first described in
United States v. O’Brien,
391 U.S. 367 , 88 S.Ct. 1673 , 20 L.Ed.2d 672 (1968).
9
Under a time, place or manner test, the restrictions “must not be based on the content of the message, must be narrowly tailored to serve a significant governmental interest, and must leave open ample alternatives for communication.”
Thomas v. Chicago Park Dist.,
534 U.S. 316 , 323 n. 3, 122 S.Ct. 775 , 151 L.Ed.2d 783 (2002) (quoting
Forsyth County, Georgia v. Nationalist Movement,
505 U.S. 123, 130 , 112 S.Ct. 2395 , 120 L.Ed.2d 101 (1992));
see also Ward,
491 U.S. at 790 , 109 S.Ct. 2746 (quoting
Community for
Creative'
Non-Violence,
468 U.S. at 293 , 104 S.Ct. 3065 , for the alternative test that time, place, and manner restrictions in a public forum must be
“justified
without reference to the content of the regulated speech, that they are narrowly tailored to serve a significant governmental interest, and that they leave open ample alternative channels for communication of the information” (emphasis added)). “[T]he essence of time, place, or manner regulation lies in the recognition that various methods of speech, regardless of their content, may frustrate legitimate governmental goals. No matter what its message, a roving sound truck that blares at 2 a.m. disturbs neighborhood tranquility.”
Consolidated Edison Co. of New York,
447 U.S. at 536 , 100 S.Ct. 2326 . The Supreme Court has emphasized that regulations which impose restrictions on speech based upon the subject matter of the speech fail the time, place, and manner test:
time, place, and manner regulations must be “applicable to all speech irrespective of content.” Governmental action that regulates speech on the basis of its subject matter “ ‘slip[s] from the neutrality of time, place, and circumstance into a concern about content.’ ” Therefore, a constitutionally permissible time, place, or manner restriction may not be based upon either the content or subject matter of speech.
Consolidated Edison Co. of New York,
447 U.S. at 537 , 100 S.Ct. 2326 (citations and footnote omitted);
see also Discovery Network,
507 U.S. at 428-30 , 113 S.Ct. 1505 (noting that where the difference in content is the basis for the regulation, the regulation is content-based regardless of
*783
whether the justification for the regulation is the difference in content).
Under the
O’Brien
test, a regulation will be sustained if it is content-neutral and if “it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.”
O’Brien,
391 U.S. at 377 , 88 S.Ct. 1673 ;
see also Turner Broad.,
512 U.S. at 662, 114 S.Ct. 2445 . When, a content-neutral ordinance aimed at the secondary effects of protected speech incidentally restricts that speech, courts use the constitutional test employed in
O’Brien. See, e.g., City of Erie v. Pap’s A.M.,
529 U.S. 277, 294-302 , 120 S.Ct. 1382 , 146 L.Ed.2d 265 (2000).
Under intermediate scrutiny, the restriction on protected speech must be narrowly tailored. The regulation “need not be the least restrictive or least intrusive means” of effecting the government’s purpose.
Ward,
491 U.S. at 798 , 109 S.Ct. 2746 . A regulation may not, however, “burden substantially more speech than- is necessary to further the government’s legitimate interests. Government may not regulate expression in such a manner that a substantial portion of the burden on speech does not serve to advance its goals.”
Id.
at 799 , 109 S.Ct. 2746 (citation and footnote omitted). If the regulation burdens substantially more speech than is necessary to further the government’s legitimate interests, then the regulation fails either the time, place, and manner test or the
O’Brien
test.
2. Commercial speech
Although a regulation which discriminates according to content is presumed unconstitutional, that ■ presumption does not defeat all content-based regulation of commercial speech. In
Central Hudson Gas & Elec. Corp. v. Public Serv. Comm’n of N.Y.,
447 U.S. 557 , 100 S.Ct. 2343 , 65 L.Ed.2d 341 (1980), the Court observed that “[t]he Constitution ... accords a lesser protection to commercial speech than to other constitutionally guaranteed expression. The protection available for particular commercial expression turns on the nature both of the expression and of the governmental interests served by its regulation.”
Id.
at 562-63 , 100 S.Ct. 2343 (citation omitted).
Usually, the test of whether a particular restriction on commercial speech is permissible is the four-part test first described in
Central Hudson:
(1) whether the regulated commercial speech concerns a lawful activity and is not misleading, (2) whether the restriction seeks to implement a substantial governmental interest, (3) whether the restriction directly advances that interest, and (4) whether the restriction is no more extensive than is necessary to achieve that interest.
Id.
at 566 , 100 S.Ct. 2343 . A restriction is no more extensive than is necessary to achieve a substantial governmental interest when the restriction is a reasonable “ ‘fit’ between the legislature’s ends and the means chosen to accomplish those ends.”
Fox,
492 U.S. at 480, 109 . S.Ct. 3028 (quoting
Posadas de Puerto Rico Assocs. v. Tourism Co. of Puerto Rico,
478 U.S. 328, 341 , 106 S.Ct. 2968 , 92 L.Ed.2d 266 (1986)).
The test for restrictions on commercial speech-in
Central Hudson
is not applied, however, if an ordinance restricts both commercial and non-commercial signs. Rather the more stringent “time, place, and manner” test described above is used.
Cleveland Area Board of Realtors v. City of Euclid,
88 F.3d 382, 385-86 (6th Cir.1996) (finding such an ordinance content neutral but not narrowly tailored under the time, place, and manner test and
*784
finding that alternative tests of constitutionality were inadequate). Regulations which impose content-based restrictions on commercial speech fail the “time, place, and manner test.”
See Discovery Network, Inc.,
507 U.S. at 428-29 , 113 S.Ct. 1505 .
C. The ordinance and content discrimination
XXL alleges that the sign ordinance violates the First Amendment by discriminating according to the content of speech and according to the identity of the speaker. Broadview Heights denies many of XXL’s claims that the ordinance discriminates according to content. It also claims that any treatment of content in the sign ordinance is constitutionally justified by its zoning and police powers or is a permissible restriction on commercial speech.
1. Content discrimination in the ordinance and non-commercial speech
a. Content-based restrictions on speech in the ordinance
The classification of signs upon which the regulations in Broadview Heights’ sign ordinance are based is in large part a content-based system of classification. The ordinance uses two variables to classify signs, use types and structural types. A sign’s use type is a description of the sign’s content.
See
C.O.B.H. §§ 1479.03(a), 1479.03(a)(2)(G). A sign’s structural type is a description of the sign’s architecture or placement.
See
C.O.B.H. § 1479.03(b). These types are not mutually exclusive. Every sign is classified according to use type and structural type.
The sign ordinance’s classification of permanent and temporary signs according to “use types” is explicitly and almost exclusively a classification according to content. Thus, a sign whose content consists of an indication of “the direction pedestrian or vehicular traffic is requested to move” is one type of sign, a directional sign, C.O.B.H. § 1479.03(a)(1)(C), while a sign whose content consists of “miscellaneous information intended to serve the public” is another type of sign, an information sign, C.O.B.H. § 1479.03(a)(1)(E). Similarly, a sign which announces a public function is a special event sign, and one which refers “to a political contest, involving candidates and/or issues” is a political sign. C.O.B.H. § 1479.03(a)(2)(D) & (G).
Whether, where, when, and how signs may be erected and maintained differ according to the sign’s content-based use type. For example, information signs are allowed in any district with the approval of the Planning Commission, and political signs are allowed in all districts where not otherwise barred by law. C.O.B.H. §§ 1479.03(a)(1)(E), 1479.12(e). Special event signs are the only non-governmental signs that may be erected in the street right of way. C.O.B.H. §§ 1479.03(a)(2)(D), 1479.06(a)(5), 1479.07(h). Information signs may be of any structural type not banned by the sign ordinance, but there may be no more than one information sign per premises, and the sign must not exceed 50% of the largest signage otherwise permitted in the district. C.O.B.H. § 1479.12(d). Directional signs are prohibited in connection with one-family attached dwellings. They are allowed in connection with attached and multifamily dwellings, but only if they are wall or ground signs. C.O.B.H. § 1479.08(a). When allowed in residential districts, there may be no more than one directional sign per dwelling, it must not exceed two square feet of face area, it must be at least five feet from the side lot line, and, if a wall sign, it may be no more than five feet above the ground. C.O.B.H. § 1479.08(b). There are similar restrictions on directional signs in business districts, industrial districts, and community facilities districts.
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C.O.B.H. §§ 1479.09(c), 1479.10(c), 1479.11(b). Political signs must be removed within 48 hours of the election to which they are related. C.O.B.H. §§ 1479.19. The content of a sign plays an important role, therefore, in whether, where, when, and how that sign may be displayed under Broadview Heights’ sign ordinance.
b. The extent of content-based restrictions on non-commercial speech
Laws must be substantially overbroad before they will be invalidated on their face. Although facially invalid laws,
if too broadly worded, may deter protected speech to some unknown extent, there comes a point where that effect— at best a prediction — cannot, with confidence, justify invalidating a statute on its face and so prohibiting a State from enforcing the statute against conduct that is admittedly within its power to proscribe.
Broadrick,
413 U.S. at 615 , 93 S.Ct. 2908 . Especially “where conduct and not merely speech is involved, ... the overbreadth of a statute must not only be real, but substantial as well, judged in relation to the statute’s plainly legitimate sweep.”
Broadrick,
413 U.S. at 615 , 93 S.Ct. 2908 . If a statute “ ‘covers a whole range of easily identifiable and constitutionally pro-scribable ... conduct,’ ” courts should not find a statute facially invalid merely because “there are marginal applications in which [the] statute would infringe on First Amendment values.... ”
Parker v. Levy,
417 U.S. 733, 760 , 94 S.Ct. 2547 , 41 L.Ed.2d 439 (1974) (quoting
United States Civil Serv. Comm’n v. National Ass’n of Letter Carriers AFL-CIO,
413 U.S. 548, 580-81 , 93 S.Ct. 2880 , 37 L.Ed.2d 796 (1973)). Thus the Supreme Court has struck down statutes as facially overbroad where a statute “does not aim specifically at evils within the allowable area of state control but, on the contrary, sweeps within its ambit other activities that in ordinary circumstances constitute an exercise of freedom of speech or of the press,”
Thornhill v. Alabama,
310 U.S. 88, 97 , 60 S.Ct. 736 , 84 L.Ed. 1093 (1940), but has refused to find statutes facially overbroad where potentially impermissible applications of the law were not “more than a tiny fraction of the materials within the statute’s reach,”
Ferber,
458 U.S. at 773 , 102 S.Ct. 3348 .
Broadview Heights’ sign ordinance substantially curtails non-commercial, speech on the basis of subject matter. The ordinance declares that all signs not conforming with the provisions of the ordinance are nuisances and prohibits any sign not specifically permitted by the ordinance’s district-by-district listing of allowed signs. C.O.B.H. §§ 1479.01(b)(2), 1479.07G). In residential districts the ordinance permits two kinds of permanent signs, nameplate and identification signs. The ordinance also permits temporary real estate signs. C.O.B.H. §§ 1479.08, 1479.12(b)(1)(A) & (3)(A). In business districts the ordinance generally permits two kinds of permanent signs, identification and directional signs, except that gasoline and service stations are allowed to display the price of gasoline and diesel fuel and to display limited types of information at fuel pumps and service islands. The ordinance also allows temporary “sale” window signs of limited surface area in business districts and certain temporary real estate and project signs. C.O.B.H. §§ 1479.09, 1479.12(b)(2) & (3). The ordinance allows permanent identification and directional signs and temporary real estate and project signs in industrial districts. C.O.B.H. §§ 1479.10, 1479.12(b)(1)(C) & (2)(B). In community facilities districts the ordinance permits permanent identification and directional signs and bulletin boards and temporary real estate and project signs. C.O.B.H. §§ 1479.11, 1479.12(b)(1)(C) & (2)(B).
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The ordinance permits political signs in all districts. C.O.B.H. § 1479.12(e). The ordinance defines political signs as signs “referring to a political contest, involving candidates or issues.”
10
C.O.B.H. § 1479.03(a)(2)(G). However, political signs “relating to issues and/or candidates identified with a specific election” must be removed within 48 hours after the election. C.O.B.H. § 1479.19.
With a few exceptions,
see, e.g., infra,
pp. 787 n. 13, 788-89, the ordinance prohibits all signs other than the signs described above.
11
See
C.O.B.H. §§ 1479.07(i). Because the listing of allowed signs is exclusive and content-based, those non-commercial signs which are not allowed because of use type limitations are disallowed because their content precludes their inclusion in the listing of allowed signs. That is to say, the ordinance curtails non-commercial speech because of its content.
The amount of non-commercial speech prohibited by the ordinance’s content-based list of permitted is substantial. For example, the ordinance makes no provision for signs displaying religious,
12
philosophical, informative, congratulatory, expressive, or non-political partisan messages. Such signs as “What would Jesus do?,”
*787
“Know yourself,” “It’s a girl!,” “Happy birthday, son!,” “Celebrate life,” or “Go Ohio State!” are not permitted by the ordinance.
13
The ordinance also makes no provision for signs addressing non-governmental social action, including such signs as “Donate blood,” “Give to the March of Dimes,” and “Be a Big Sister.”
14
Even more troubling is the ordinance’s prohibition of signs addressing political and social issues which do not refer to a particular political contest. Such signs as “No war with Iraq,” “Down with affirmative action,” “Register guns, not aliens,” and similar declarations addressing issues salient or potentially salient to the body politic do not fit within the content-based list of signs permitted by the ordinance if they do not refer, at least impliedly, to a particular political contest. Thus, the only political or social issues which may be addressed are those which are already found sufficiently salient by mainstream thought that they are the subject of an election or other vote. Individuals concerned with any other issue are barred from expressing their political and social concerns by means of signs.
Moreover, even signs related to issues or candidates identified with a specific election must be removed 48 hours after that election. On its face, such a prohibition bars supporters of the losing side of a referendum from posting signs designed to convince passers-by to change their minds on the issue and bars supporters of the winning side from posting signs designed to maintain public support for their position. Similarly, the prohibition would have prevented supporters of Al Gore after the 2002 presidential election from displaying after the election signs supporting his candidacy as a protest against the election’s outcome and manner of decision. These prohibitions strike at the core of our First Amendment freedoms, the freedom to speak about matters of political concern.
See Republican Party of Minnesota,
536 U.S. at 773 -, 122 S.Ct. at 2534 ;
see also Boos,
485 U.S. at 318 , 108 S.Ct. 1157 .
Broadview Heights’ ordinance not only bans a substantial amount of non-commercial speech, but it also subjects such speech, including political speech within the meaning of the ordinance, to burdens that it does not impose on some kinds of commercial speech. A business may erect a sale sign of up to five square feet in area without a permit, but an individual seeking to erect a political sign of five square feet in area must pay $100.00 and apply for permission to erect the sign from the Building Commissioner. C.O.B.H. § 1479.13. The application for such a sign must include the following, using “photographs and drawings at a scale which clearly shows the details and design of the sign”:
(1) The design and colored layout of each sign proposed, including the total area of all signs and the area, height, character, materials, colors and type of lettering or other symbols of individual signs. Material samples may be requested.
(2) Photographs or drawings of the building for which the signs are proposed;
*788
(3) The number and types of lamps and lens material to be used in any illuminated signs and data showing that the illumination meets the standards established in Section 1479.05(d), including rays to illuminating areas;
(4) A dimensional site plan and building elevation showing the exact locations of each sign in relation to the building and property lines. Also included shall be the dimensions of the width of the building or building unit face or faces and the lot or lots not occupied by buildings, all used for calculation purposes. The sign and locations of existing signs shall not be included in the calculations thereunder.
(5) Details and specifications for construction, erection and attachment as may be required by the Building Code, including the name of the sign contractor or company.
C.O.B.H. § 1479.13(c). The applicant for such a sign must also post a bond or cash deposit at the time of application to guarantee the cost of removal. C.O.B.H. § 1479.13(f)(2). Depending upon the type of temporary political sign of area greater than three square feet sought, permission to erect the temporary sign may be granted for as short as 30 days or as long as a year. C.O.B.H. § 1479.13(f)(1). Businesses seeking temporary development signs and temporary identification signs are not, however, required to post a deposit and are not subject to the time limitations of C.O.B.H. § 1479.13(f)(1). C.O.B.H. § 1479.13(f)(4). Moreover, a homeowner may display without a permit a temporary “For Sale” or “For Lease” sign but not a temporary sign stating a point of view on political or social issues not connected with a political campaign. C.O.B.H. § 1479.13(b)(1).
Finally, the ordinance accords differing treatment to differing kinds of noncommercial speech depending upon their content. Signs which “perform a public service function such as indicating time or temperature” may “revolve, rotate, whirl, spin, flash, sparkle or otherwise make use of motion to attract attention,” but political signs and other signs may not. C.O.B.H. § 1479.05(e). Signs which display information intended to serve the public may be internally illuminated, but political signs and other signs may not. C.O.B.H. §§ 1479.03(a)(1)(E), 1479.07(j). Identification signs in residential districts may be illuminated with the approval of the Planning Commission, but political signs may not. C.O.B.H. § 1479.08(c)(1). Churches and other non-profit groups may receive approval to use portable or mobile signs; individuals wishing to express a political message or some other message may not. C.O.B.H. § 1479.12(e)(6)(A) & (B). Signs or displays which include the following non-commercial content are exempted from all requirements of the sign ordinance, although political signs are not:
(a) Cornerstones and permanent building plaques, displaying the date of construction, the building name, or similar information;
(b) Display of official public notices, the flag and an emblem or insignia of an official government body;
(c) Holiday decorations for customary periods of time;
(d) Signage which is not advertising and which is an integral part of the original construction of vending machines, fuel pumps or similar devices;
(e) Street name signs; and
(f) Special signage determined by the Architectural Review Board to be reasonable considering the intent and regulations of this chapter.
C.O.B.H. § 1479.18.
In sum, Broadview Heights’ sign ordinance uses content-based distinctions to
*789
ban, abridge, or burden a substantial amount of non-commercial speech including “classically political speech.”
Boos,
485 U.S. at 318 , 108 S.Ct. 1157 . Its content-based distinctions severely limit the use of residential signs, “a venerable means of communication that is ... an important and distinct medium of expression,”
City of Ladue v. Gilleo,
512 U.S. 43 , 114 S.Ct. 2038 , 129 L.Ed.2d 36 (1994), and impose burdens on non-commercial speech that they do not impose on commercial speech. The ordinance also makes content-based distinctions between non-commercial signs by allowing certain kinds of displays depending upon content, allowing certain kinds of displays depending upon the speaker, and providing exemptions from restrictions depending upon content.
15
The overbreadth of Broadview Heights’ sign ordinance “does not aim specifically at evils within the allowable area of state control but, on the contrary, sweeps within its ambit other activities that in ordinary circumstances constitute an exercise of freedom of speech.... ”
Thornhill,
310 U.S. at 97 , 60 S.Ct. 736 . The ordinance’s overbreadth reaches considerably more than a tiny fraction of the speech within the reach of the statute. For this reason, the ordinance is substantially overbroad.
c.
Content-based restrictions on noncommercial speech and strict review
Because the ordinance makes content-based distinctions in restricting speech, the ordinance must pass the test of strict review to be constitutional. The content-based restrictions on non-commercial speech in Broadview Heights’ sign ordinance do not pass that test. The restrictions in the ordinance do not serve a compelling state interest, and they are not narrowly tailored to serve their ostensible interests. The ordinance makes clear that the interests served by the ordinance are traffic safety, aesthetics, and the protection of property values and “neighborhood character.”
16
C.O.B.H. § 1479.01(a). No court has found any of these concerns to be a compelling government interest suffi
*790
cient to withstand strict scrutiny.
See Playboy Entm’t,
529 U.S. at 815, 120 S.Ct. 1878 (“[T]he lesser scrutiny afforded regulations targeting the secondary effects of crime or declining property values has no application to content-based regulations targeting the primary effects of protected speech.”);
City of Ladue,
512 U.S. at 48 , 114 S.Ct. 2038 (affirming a lower court decision which found that interests in traffic safety, aesthetics, and neighborhood preservation were not sufficiently compelling to support content-based restrictions on speech);
Whitton v. City of Gladstone,
54 F.3d 1400, 1408 (8th Cir.1995). Broad-view Heights cites no government interest implicated by the sign ordinance which might be said to be a compelling interest. For this reason alone, Broadview Heights’ content-based restrictions on non-commercial signs fail the test of strict scrutiny.
But Broadview Heights’ content-based restrictions on non-commercial signs fail strict review for a second reason. The content-based restrictions are not narrowly drawn to achieve the ends of traffic safety, aesthetics, and the protection of property values and “neighborhood character.” For example, identification signs permit “the name and address of a building, development, public or semipublic facility, business, office or industrial establishment. Such signs may also include the names of tenants, general type of goods sold, or services rendered.... ” C.O.B.H. § 1479.03(a)(1)(D). Identification signs may not include “the listing of specific goods or services, brand names, prices, ‘sale’ or telephone numbers.... ”
Id.
There is no obvious justification arising from traffic safety, aesthetics, or the protection of property values and neighborhood character as to why certain information is prohibited on identification signs and other information is not. On the face of it, a concern for the quantity of information on a sign, rather than its content, would seem more likely to promote traffic safety and aesthetics.
The sign ordinance contains many similar examples of content-based restrictions which are not narrowly drawn to further the espoused ends of the ordinance. The ordinance does not permit most signs to “revolve, rotate, whirl, spin, flash, sparkle or otherwise make use of motion to attract attention....” C.O.B.H. §§ 1479.05(e), 1479.07(c). But a sign which performs a public service function may do all of these things. Signs may not be illuminated, unless they are information signs. C.O.B.H. § 1479.07(j). Temporary signs must be located a minimum of 100 feet from a property fine in a residential neighborhood (thus effectively banning many temporary signs on smaller residential lots), unless the signs are real estate signs. C.O.B.H. § 1479.12(c)(1). One information sign may be erected in any district, but it may not exceed 50% of the largest signage otherwise permitted in the district. C.O.B.H. § 1479.12(d). A permit is not required for temporary signs giving directions or an address, but a temporary sign which is more than three square feet in area and concerns a project or a special event requires a permit. C.O.B.H. § 1479.13. A directional sign in a residential district may rise five feet from the ground, but a nameplate in a residential district may rise only four feet from the ground. C.O.B.H. § 1479.08(b). A sign is permitted near the service entrance of a multi-unit building in business districts in addition to all other permitted signage, but only if the sign displays the business name and address of the unit. C.O.B.H. § 1479.09(d)(3). In a business district the only information which may be displayed on an awning is the name of the business. C.O.B.H. § 1479.09(d)(10). An identification sign in an industrial district may have a face area of 50 square feet, but the face area of a directional sign in the same district is limited to two square feet. C.O.B.H.
*791
§ 1479.10(c). An additional sign is permitted to industrial parks and multibuilding developments in industrial districts, but only if the sign displays the name and address of the industrial park and multi-building development and nothing more. C.O.B.H. § 1479.10(d)(2). A unit in a community facilities district may erect a bulletin board or an identification sign as a wall sign, but the unit may not erect a directional sign as a wall sign. C.O.B.H. § 1479.11(a). A one-family dwelling in a residential district may erect a permanent nameplate or identification sign but not a permanent political sign. C.O.B.H. §§ 1479.07(a)(1)(C) & (F), 1479.08(a), 1479.19. Displays of official public notices, the flag, and the emblem of an official government body are exempt from the provisions of the sign ordinance. C.O.B.H. § 1479.18(b). One may display holiday decorations unconstrained by the restrictions of the ordinance, except that such displays may only last “for customary periods of time.” C.O.B.H. § 1479.18(c).
The above content-based restrictions on whether, when, where, and how a sign may be displayed have little connection with traffic safety and aesthetics. Whether a moving sign displays the time or “25% off,” whether an illuminated sign displays travel information or an exhortation to give blood, whether a temporary sign announces a house for sale or urges a ban on handguns, or whether an awning sign announces the name and address of a firm or declares “Lawyers for Christ” has no obvious connection to traffic safety and aesthetics and little obvious connection to the preservation of property values.
Some of the provisions of the sign ordinance are entirely puzzling given the expressed purposes of the ordinance. For example, community special event signs may be displayed only for two weeks, after which time they become, one must suppose, a threat to safety, aesthetics, and neighborhood character. C.O.B.H. § 1479.12(c)(5). Other provisions are more disturbing. The ordinance bans portable or mobile signs in furtherance of the ordinance’s espoused goals but allows churches or a non-profit organizations to display such signs. C.O.B.H. § 1479.12(c)(6). The ordinance does not explain how the nature of the organization displaying the portable sign changes its relationship to the purposes for which the sign ordinance was created.
The sign ordinance is riddled with innumerable instances such as those above in which a change in a sign’s content affects whether, when, where, or how that content may be displayed. Why a change in the content of a sign makes the sign more or less of a threat to safety, aesthetics, or property values, thus justifying differential treatment of the sign under the sign ordinance, is a mystery that the ordinance does not solve. The number of signs, their size, the quantity of information on them, their color and placement, and the limitation of such structurally distracting signs as moving and illuminated signs to certain areas of the city would seem to do far more to promote traffic safety, aesthetics, and property values than the regulation of the content of signs.
Broadview Heights could have chosen to regulate non-commercial signs by addressing solely the size, number, frequency, movement, illumination, structural characteristics, and other purely physical qualities of signs. It chose to allow the content of signs affect how signs are regulated. This is permissible as long as the regulations Broadview Heights adopts are narrowly tailored to serve compelling government interests. Broadview Heights offers no interests implicated by its sign ordinance which courts have accepted as compelling. And the content-based regulations in the ordinance vary from reasonably related to the expressed
*792
interests served by the sign code to apparently unrelated to those interests. Few of the content-based regulations in the sign ordinance are narrowly tailored to the expressed interests served by the ordinance.
17
For these reasons, the sign ordinance’s restrictions on non-commercial signs fail the test of strict scrutiny.
Defendant cannot argue that the restrictions on non-commercial speech in its ordinance should be evaluated by means of a “time, place, and manner” test. The content-based restrictions in the classification according to use types permeates the entire sign ordinance. A time, place, and manner test is inappropriate when restrictions on speech are content-based. Moreover, even if a time, place, and manner test were appropriate, the ordinance would fail such a test. A time, place, and manner test requires that the restrictions on speech must not be based on the content of the message and must be narrowly tailored to serve a significant governmental interest. As has already been seen, the restrictions in Broadview Heights’ sign ordinance are based on the content of messages and are not narrowly tailored to serve their ostensible interests. Even if a time, place, and manner test were appropriate in evaluating the restrictions on non-commercial speech in Broadview Heights’ sign ordinance, the ordinance would fail that test.
2. Content discrimination in the ordinance and commercial speech
XXL argues that Broadview Heights im-permissibly distinguishes among commercial signs according to their content. Broadview Heights replies XXL does not have standing to challenge any content-based distinctions in the sign ordinance. As has already been shown, this argument is unavailing.
a. Standard of review
Broadview Heights’ sign ordinance regulates both commercial and noncommercial speech. The test described in
Central Hudson
is, therefore, inappropriate, and the more stringent time, place, and manner test should be used in evaluating the restrictions on commercial speech in the ordinance. That is, the restrictions must not be based on the content of the message, must be narrowly tailored to serve a significant governmental interest, and must leave open ample alternatives for communication.
b. Restrictions on commercial speech and the time, place, and manner test.
The restrictions on commercial speech in Broadview Heights’ sign ordinance fail the time, place and manner test in two respects: They are based on the content of messages and they are not narrowly tailored to serve the interests which justify them.
1. Content-based restrictions on commercial speech
Four use categories of permanent sign and six use categories of temporary sign apply in whole or part to commercial speech. These are permanent billboards, bulletin boards, identification signs, and nameplates and temporary project signs, real estate signs, sale signs, special event signs,
18
specific product signs, and tempo
*793
rary identification signs.
See
C.O.B.H. § 1479.03(a). One of the use categories applicable to commercial speech itself regulates the content of the speech which may appear on the sign. An identification sign, defined as “indicating the name and address of a building, development, public or semi-public facility, business, office or industrial establishment” may not list “specific goods or services, brand names, prices, ‘sales’ or telephone numbers.... ” C.O.B.H. § 1479.03(a)(1)(D).
Other portions of the ordinance also regulate the content of commercial speech. Advertising is not permitted on parked vehicles unless the vehicle is a commercial delivery or service vehicle and the advertising relates to the business in which the vehicle is involved. C.O.B.H. § 1479.07(a). Persons wishing permanently to display in business districts the information allowed on identification signs may use ground signs in a local retail district, canopy signs in shopping centers, and window and wall signs in a general commercial district, but not other structural types of signs to display that information. C.O.B.H. § 1479.09(a). Identification signs in business districts may include a listing of the general types of goods sold and services rendered, but identification signs in office districts may not. C.O.B.H. § 1479.09(d)(7). If an establishment located in a business district displays its business name and address on permanent - plate not exceeding two square feet in area affixed on or near the service entrance of the establishment, the sign will be permitted in addition to the otherwise-allowable maximum sign area allowed in business districts. C.O.B.H. § 1479.09(d)(3). Temporary signs announcing sales are limited to up to 10% of each window of an individual building unit, not to exceed 30% of the building unit’s permitted area for wall identification signage. C.O.B.H. § 1479.09(d)(9). Signs announcing sales are prohibited except when secured to windows and doors of a main building.
Id.
An establishment in a business district may display the name of the business in letters not exceeding eight inches high on the front and side of awning but may not display other information on the awning. C.O.B.H. § 1479.09(d)(10). Each permitted identification or directional sign in a business district is limited in number according to use type and structural type and must satisfy requirements regarding maximum size, maximum height, minimum setback, and other requirements. C.O.B.H. § 1479.09(c). The ordinance imposes similar restrictions according to use type in industrial districts and community facilities districts,
see
C.O.B.H. §§ 1479.10, 1479.11, and imposes similar restrictions on temporary signs according to use type.
See
C.O.B.H. § 1479.12(b).
The sign ordinance places content-based restrictions on commercial speech in addition to those made on the basis of use type. For example, signs which “perform a public service function such as indicating time or temperature” may “revolve, rotate, whirl, flash, sparkle or otherwise make use of motion to attract attention,” but signs which contain other information may not move. C.O.B.H. § 1479.05(e). Non-profit organizations “and/or churches” may use portable or mobile signs, but other speakers may not. C.O.B.H. §§ 1479.07(f), 1479.12(c)(6)(A). Signs which present “miscellaneous information intended to serve the public” such as “travel information, vehicle service, weather, time, historic and scenic sites, [and] recreation facilities,” C.O.B.H. § 1479.03(a)(E), may be internally illuminated, but signs containing other information may not be. C.O.B.H.
*794
§ 1479.07(j). The front and side portions of awnings may contain the name of the business in the building but not other information. C.O.B.H. § 1479.09(d)(10). Building identification signs may be placed only near the main entrances of buildings. C.O.B.H. § 1479.09(d)(12)(A). Signs identifying individual tenants in a multiple tenant building may be placed only on the ground and may only identify the tenants, the building, and the address. C.O.B.H. § 1479.09(d)(12)(B). Hotels, motels, and restaurants in office laboratory and light industrial districts have special limitations on their maximum area of allowed signage. C.O.B.H. § 1479.10(b)(3). In industrial districts, “[m]ulti-unit building service entrances may be identified by the business name and address on a permanent nameplate, not exceeding two square feet in single sign face area and located on or near the service entrance.” C.O.B.H. § 1479.10(d)(3). “Grand-opening or community special event signs shall not be displayed for a period of greater than two weeks.” C.O.B.H. § 1479.12(e)(5).
Gasoline stations and automotive service stations aré singled out for special restrictions on the basis of content:
Gasoline and automobile service stations.
Such signs shall conform to the district regulations in which they are located, except as permitted below.
A. All gasoline and service stations shall be permitted one free-standing permanent identification sign for and on each street the station fronts on.
B. The maximum sign face area for each sign displaying only the price of gasoline and diesel fuel is four square feet per type. No more than two fuel price signs shall be permitted per street frontage. The sign face area for price signs shall be part of the identification sign requirement. No other specific goods price signs are permitted....
D. Permanent information signs at fuel pumps and service islands are permitted. Such signs shall be limited to the display of information regarding the type of service provided and other information essential in directing and instructing the motoring public, as approved by the Planning Commission.
C.O.B.H. § 1479.09(d)(4).
In sum, content-based distinctions in the sign ordinance pervade the ordinance and are the basis for much of the ordinance’s regulation of commercial speech. Signs are classified according to use types largely on the basis of the kind of information carried by the sign, and commercial speech on signs is regulated and restricted in part according to use type classification. The sign ordinance also contains an abundance of content-based restrictions on commercial speech in addition to those made on the basis of use type.
2. Content-based restrictions on commercial speech not narrowly tailored
As already noted, the sign ordinance is intended to promote traffic safety, improve aesthetics, and protect property values and neighborhood character. C.O.B.H. § 1479.01(a). Because the ordinance uses content-based restrictions on protected speech, the burden is on the defendants to show that the ordinance does not unnecessarily circumscribe protected expression. Defendants do not even attempt to shoulder this burden.
Few of the content-based restrictions on commercial speech in the Broadview Heights sign ordinance are narrowly tailored to the espoused purposes of the sign ordinance. Broadview Heights might argue that a ban on commercial signs is one of several measures necessary to preserve
*795
the character of residential neighborhoods. But it is difficult to understand how the conglomeration of content-based distinctions regarding what can and cannot be said by means of commercial signs are necessary restrictions on commercial speech. Common sense says that a large area of signage, signage crowded with text, or interminably posted “temporary” signs may threaten traffic safety by posing distractions and may offend aesthetic sensibilities. But the content-based restrictions of the ordinance sections listed above would seem to do little to ameliorate these problems. Restricting the area of allowable signage, imposing minimum limits on letter size and spacing, and limiting the time during which temporary signs are displayed are allowable, content-neutral means which would achieve the city’s ends.
City of Ladue,
512 U.S. at 48 , 114 S.Ct. 2038 (“[G]overnments may regulate the physical characteristics of signs — -just as they can, within reasonable bounds and absent censorial purpose, regulate audible expression in its capacity as noise.”). Banning signs which advertise products sold off-site is also an allowable means of reducing the proliferation of signs.
See Metromedia,
453 U.S. at 511-12 , 101 S.Ct. 2882 (citing cases). Banning particular content from signs would seem to do relatively little to serve the interests of traffic safety, aesthetics, property values, and preserving neighborhood character. Broadview Heights provides no evidence to the contrary.
Broadview Heights fails to carry its burden to show that the ordinance does not unnecessarily circumscribe protected expression. The court must conclude that the restrictions in Broadview Heights’ sign ordinance are not narrowly tailored to serve their espoused ends. Because the ordinance uses content-based distinctions to restrict protected speech and because the restrictions in the ordinance are not narrowly tailored to serve their espoused ends, the sign ordinance fails the time, place, and manner test appropriate when an ordinance regulates both commercial and non-commercial speech.
D. The ban on pole signs
XXL contends that Broadview Heights ban on pole signs is impermissibly selective and forecloses an entire medium of expression. Broadview Heights replies that the pole sign prohibition is a reasonable, content-neutral regulation which does not violate the First Amendment.
The ordinance defines a pole sign as “[o]ne free-standing with one or not more than two faces, which is supported wholly by a pole or poles designed to allow pedestrian or similar access thereunder.” C.O.B.H. § 1479.03(b)(3). The ordinance prohibits pole signs. C.O.B.H. § 1479.07(e). The ordinance exempts, however, certain signage from the restrictions of the ordinance, including the prohibition against pole signs. Official public notices, the flag, the emblem or insignia of an official government body, holiday decorations, street name signs, and “[s]pecial signage determined by the Architectural Review Board to be reasonable considering the intent and regulations” of the ordinance may be displayed by means of pole signs. C.O.B.H. § 1479.18.
While the language of the prohibition on pole signs is of itself content-neutral, all the exemptions to the prohibition are content-based. As has already been discussed, a content-based exemption is no less a content-based distinction because it is phrased as exempting certain speech from a restriction rather than as imposing the restriction only on the burdened class of speech.
See supra
p. 786, n. 11. Because Broadview Heights’ pole sign prohibition treats non-commercial signs differently depending upon their content, XXL’s challenge by means of the doctrine of over-
*796
breadth to the pole sign’s effects on noncommercial speech must be examined using strict scrutiny.
The selective ban on pole signs in Broadview Heights’ sign ordinance does not pass that test. As already described, none of the interests underlying the sign ordinance is a compelling state interest. Moreover, Broadview Heights does nothing to assume its burden of showing that the selective ban on pole signs is narrowly tailored to serve the ordinance’s espoused interests. The connection between traffic safety and aesthetics and the selective proscription of certain content on pole signs is not obvious: “It cannot be said that the government’s pole signs — whether they are for the city recreational complex or city hall — are somehow less distracting or more pleasing to the eye than the pole sign of a private individual or business.”
North Olmsted Chamber of Commerce v. City of North Olmsted,
86 F.Supp.2d 755, 774 (N.D.Ohio 2000).
Broadview Heights could serve its safety interests by limiting the height, location, and number of pole signs without reference to their content. Similarly, if the city can show that there are ample alternative channels of communication, the city can ban all pole signs without exception,
Gilleo,
512 U.S. at 54-55 , 114 S.Ct. 2038 , or ban all commercial pole signs,
Metromedia,
453 U.S. at 506-12 , 101 S.Ct. 2882 . But unless it shows a compelling state interest and shows that a selective ban on pole signs on the basis of content is the least restrictive means of serving that interest, it cannot selectively ban pole signs on the basis of content. For this reason, the selective ban on pole signs in the Broadview Heights sign ordinance fails to pass constitutional muster.
The prohibition on pole signs and its exemptions are facially overbroad. Moreover, that overbreadth is real and substantial in that there is “a realistic danger that the ordinance itself will significantly compromise recognized First Amendment protections of parties not before the Court.”
Taxpayers for Vincent,
466 U.S. at 801 , 104 S.Ct. 2118 . The court cannot construe the ordinance so as to avoid constitutional problems with regard to pole signs. There is no reasonable interpretation of the ban on pole signs at C.O.B.H. § 1479.07(e) and of the exemption from the restrictions of the ordinance, including the prohibition against pole signs at C.O.B.H. § 1479.18 which would avoid unconstitutionality. Finally, it is not possible for a court to sever the unconstitutional portions of the ordinance from the constitutional portions of the ordinance because it is not apparent what legislative intent the court should honor by severance.
See infra,
pp. 805-06. For these reasons, the prohibition on pole signs and the exemption from the restrictions of the ordinance are, when read together, unconstitutional by application of the doctrine of overbreadth.
The prohibition on pole signs and the exemption from the restrictions of the ordinance are unconstitutional, however, even without resort to the doctrine of over-breadth. XXL also challenges the ban on pole signs as applied to its own commercial speech. Again, because Broadview Heights’ sign ordinance regulates both commercial and non-commercial speech, the time, place, and manner test is used to evaluate the restrictions on commercial speech in the ordinance. That is, the restrictions must not be based on the content of the message, must be narrowly tailored to serve a significant governmental interest, and must leave open ample alternatives for communication.
The prohibition on pole signs and the related exemptions do not pass the time, place, and manner test because the exemptions are content-based. That is, they provide exemptions from the restrictions of
*797
the sign ordinance depending upon the content of the message or depending upon the entity displaying the message. Because the prohibition on pole signs and the related exemptions fail the time, place, and manner test, they are unconstitutional as applied to XXL’s commercial speech.
E. The ordinance and prior restraint
XXL argues that the ordinance’s permit requirements constitute an impermissible prior restraint on speech. Broadview Heights replies that its permit scheme is a valid, content-neutral use of its police powers aimed at the secondary effects of First Amendment activity rather than at the activity itself.
1. Permits and prior restraint
When a government body “imposes any prerequisite to engaging in constitutionally protected expression, that body is said to have imposed a ‘prior restraint’ on speech.”
Ohio Citizen Action v. City of Avon Lake,
986 F.Supp. 454, 462 (N.D.Ohio 1997) (citing
Freedman v. Maryland, 38
0 U.S. 51 , 54, 85 S.Ct. 734 , 13 L.Ed.2d 649 (1965)). “Prior restraints are not unconstitutional per se.”
Southeastern Promotions, Ltd. v. Conrad,
420 U.S. 546, 558 , 95 S.Ct. 1239 , 43 L.Ed.2d 448 (1975). Prior restraint of protected speech, however, bears a “heavy presumption against its constitutional validity.”
Id.
(citing
Bantam Books, Inc. v. Sullivan,
372 U.S. 58, 70 , 83 S.Ct. 631 , 9 L.Ed.2d 584 (1963)).
Any permit scheme is invalid if it vests standardless discretion to grant or deny a permit in the hands of government officials.
Nightclubs, Inc. v. City of Paducah,
202 F.3d 884, 890 (6th Cir.2000). A permit scheme must also meet certain procedural requirements depending upon whether the scheme is content-based or content-neutral. Any permit scheme which considers content in deciding whether to grant a permit “presents peculiar dangers to constitutionally protected speech.”
Thomas,
534 U.S. at 321 , 122 S.Ct. 775 (quoting
Freedman,
380 U.S. at 57 , 85 S.Ct. 734 ). Such a scheme will constitute an impermissible prior restraint on speech unless it contains three procedural safeguards:
(1) any restraint prior to judicial review can be imposed only for a specified brief period during which the status quo must be maintained; (2) expeditious judicial review of that decision must be available; and (3) the censor must bear the burden of going to court to suppress the speech and must bear the burden of proof once in court.
Thomas,
534 U.S. at 321 , 122 S.Ct. 775 (quoting
FW/PBS, Inc. v. Dallas,
493 U.S. 215, 227 , 110 S.Ct. 596 , 107 L.Ed.2d 603 (1990));
see also Nightclubs,
202 F.3d at 889-90 . If a permit scheme does not consider content in deciding whether to grant a permit, then it need not contain the third procedural safeguard,
ie.
that the censor must bear the burden of going to court and the burden of proof in court. The first two procedural requirements, however, are necessary to a valid permit scheme regardless of whether the scheme considers message content.
In the Sixth Circuit
19
the criteria for determining whether expeditious judicial review is available to applicants are particularly stringent. “[A] licensing scheme must reasonably ensure a prompt judicial
determination,
and not mere access to judicial review.”
Nightclubs,
202 F.3d at 892 (emphasis added). Moreover, prompt judicial review must be guaranteed: “[A] theoretical possibility of expeditious judi
*798
cial review is not constitutionally sufficient. A guarantee of prompt judicial review is necessary ‘because undue delay results in the unconstitutional suppression of protected speech.’ ”
20
Id.
(quoting
FW/PBS,
493 U.S. at 228 , 110 S.Ct. 596 ). The requirement of prompt judicial review is not satisfied merely “because an aggrieved applicant or licensee may seek preliminary injunctive relief soon after filing an original action in ... court.”
Nightclubs,
202 F.3d at 892 . The Sixth Circuit recognizes the difficulty that municipalities may have in guaranteeing the requisite judicial review:
Quite obviously, a municipality has no authority to control the period of time in which a state court will adjudicate a matter. Indeed, a city does not even possess the authority to create a mere “avenue” for prompt judicial review; the availability of judicial review is, in effect, dependent upon state law. We recognize that, as a practical matter, the requirement of prompt judicial review means that a city seeking to impose a licensing scheme must take certain steps to avoid constitutional infirmities. Specifically, a city may very well have to go beyond merely maintaining the status quo and actually permit the communication of protected expression until a judicial decision is rendered on a matter. For example, an ordinance could provide that a license shall issue if a reviewing court fails to reach a decision within a reasonably brief period of time. Similarly, a city could also issue provisional licenses to those businesses and employees who choose to seek judicial review of license denials.
Id.
at 893-94 (citations and footnote omitted). But “[wjhile these measures may seem burdensome on first blush, they are reasonable in light of the great importance this nation attaches to the freedom of expression.”
Id.
at 894 .
2. The permit scheme in Broadview Heights’ sign ordinance
Most of the provisions of the permit scheme in the Broadview Heights sign ordinance are found at C.O.B.H. § 1479.13:
Applications for permits to erect, place, pain, relocate or alter a sign shall be made to the Building Commissioner or his or her designee by the owner, lessee or developer of the property or his or her authorized representative. The application shall be submitted on forms furnished by the City and may be made either separately or with the application for a permit for a building. The fee shall be one hundred dollars.
(a)
Permit Required.
A permit shall be required for all permanent and temporary signs with the exception of those signs listed in subsection (b) hereof, Section 1479.18 and those expressly permitted in these Codified Ordinances.
(b)
Permit Not Required.
A permit is not required for any temporary sign listed which is under three square feet or is listed below, provided that the sign is located on the lot relating to the sign. However, all such signs shall be subject to the applicable regulations in this chapter.
(1) A temporary sign for the sale or lease of a one- or two-family dwelling or of one lot intended for such a dwelling;
(2) A business sale sign, not exceeding five feet square in area, displayed as an inside temporary window sign, as defined in Section 1479.03(a)(2)E;
*799
(3) Garage sale or other similar signs of a personal nature in a residential district, not exceeding three square feet; and
(4) A temporary directional sign that conforms to Section 1479.12(b)(3)A and Section 1479.12(c)(4). (Adopting Ordinance)
(5) A temporary address sign as specified in Section 1479.20....
(c)Contents of Applications.
Each application shall present the information required below through the use of photographs and drawings at a scale which clearly shows the details and design of the sign.
(1) The design and colored layout of each sign proposed, including the total area of all signs and the area, height, character, materials, colors and type of lettering or other symbols of individual signs. Material samples may be requested.
(2) Photographs or drawings of the building for which the signs are proposed;
(3) The number and types of lamps and lens material to be used in any illuminated signs and data showing that the illumination meets the standards established in Section 1479.05(d), including rays to illuminating areas;
(4) A dimensional site plan and building elevation showing the exact locations of each sign in relation to the building and property lines. Also included shall be the dimensions of the width of the building or building unit face or faces and the lot or lots not occupied by buildings, all used for calculation purposes. The sign and locations of existing signs shall not be included in the calculations thereunder.
(5) Details and specifications for construction, erection and attachment as may be required by the Building Code, including the name of the sign contractor or company.
(d)
Application Review.
The Building Commissioner shall examine the application and verify conformance with the requirements of this chapter, as well as the location and relationship to signs currently existing. He or she shall then forward the application and drawings to the Architectural Review Board. The Board shall review the application and drawings for appropriateness of size, scale, shape, color, and illumination in relation to building size. Conflicting applications for the same development area shall be resolved by the Board. Permanent signs shall take precedence over temporary signs.
(e)
Application Approval.
In the event the application complies with the provisions of this chapter, the Board shall make its recommendation of the proposed sign to Council. Council shall then approve or reject such application. If approved by Council, the Commissioner shall issue a sign permit. Council shall not approve a sign that does not conform to these regulations and shall not reject a sign that does conform to these regulations.
(f)
Temporary signs.
In addition to the other sign requirements, temporary signs shall be issued for the following periods and are renewable by action of Council.
(1)
Time limit.
A. Wall, one sign per lot or unit sixty days;
B. Ground, one sign per street one year; and
C. Portable or mobile, thirty days, provided that notwithstanding any other provision of this chapter, said time period shall not be renewable
*800
until the calendar year following the year in which said use occurred.
(2)
Bond or cash deposit.
A bond or cash deposit shall be posted at the time of the application to guarantee the cost of removal. The amount of the bond or cash deposit shall be set by separate ordinance.
(3)
Sign identification.
Each sign location shall be listed on the permit. The date of the permit expiration shall appear on each sign.
(4)
Building Commissioner approval.
The following signs may be approved by the Building Commissioner, do not require a deposit and are not subject to the time limitations of paragraph (f)(1) hereof:
A. Municipal of governmental signs;
B. Special event signs;
C. Temporary development signs; and
D. Temporary identification signs. Upon application for a permanent identification sign, permission for a temporary identification sign, similar in size and type to the permanent sign being applied for, may be granted by the Building Commissioner until approval of the permanent sign is made, for a period not to exceed 120 days, provided that the applicant may be permitted to maintain a temporary identification sign for a longer period of time upon specific application to the Council for permission to do so and approval thereof by motion, which motion shall set forth with specificity any additional time granted to the applicant....
The exceptions noted at C.O.B.H. § 1479.18 are the general exceptions to all the restrictions of the sign ordinance:
(a)Cornerstones and permanent building plaques, displaying the date of construction, the building name, or similar information;
(b) Display of official public notices, the flag and an emblem or insignia of an official government body;
(c) Holiday decorations for customary periods of time;
(d) Signage which is not advertising and which is an integral part of the original construction of vending machines, fuel pumps or similar devices;
(e) Street name signs; and
(f) Special signage determined by the Architectural Review Board to be reasonable considering the intent and regulations of this chapter.
C.O.B.H. § 1479.18.
Anyone denied a permit by the Building Commissioner may appeal the decision within ten days to the Architectural Board of Review (“the Board”):
An order may be reversed or modified by the Board if it finds:
(1) The order is contrary to a provision of this Code.
(2) The order is contrary to a fair interpretation or application of this Code.
(3) A variance from the provisions of this Code, in a specific case, will not be contrary to the public interest where literal enforcement of this Code will result in unnecessary hardship.
C.O.B.H. § 1440.25(a). The Board must schedule a hearing within 30 days of receiving an appeal and must render a decision within 30 days after holding a hearing. C.O.B.H. § 1440.25(b)
&
(c). Any party not satisfied with the decision of the Board may appeal to the Court of Common Pleas of Cuyahoga County. C.O.B.H. § 1440.25(f).
*801
8. Broadview Heights’ sign ordinance as a system of prior restraint
Broadview Heights’ sign ordinance considers content in determining whether to grant a permit to erect a sign. The ordinance mandates that “Council shall not approve a sign that does not conform to these regulations and shall not reject a sign that does conform to these regulations.” C.O.B.H. § 1479.13(e). Because pervasive content-based distinctions in the ordinance determine whether, when, where, and how a sign may be displayed, permits will necessarily be approved or denied in part on the basis of content. Thus, Broadview Heights’ sign ordinance is valid only if it contains all three procedural safeguards potentially applicable to permit schemes.
21
Broadview Heights’ permit scheme would be invalid even if it were content-neutral, however, because it does not contain any of the procedural safeguards potentially applicable to permit schemes.
The sign ordinance does not preserve the status quo for a specified brief period until judicial review is obtained. The ordinance provides:
Whenever the removal ... of any permanent sign has been ordered by the Building Commissioner, the person, firm or corporation who or which erected such sign or on whose premises such sign or display structure has been erected, affixed or attached shall remove or maintain the sign within two business days
22
after receiving such notice. In the event of noncompliance, the Commissioner may remove or cause to be removed or maintained such sign at the expense of the person, firm or corporation who or which erected such sign, or on whose premises it was erected, affixed or attached; each person, firm or corporation shall be individually and separately liable for the expenses incurred in the removal of such sign.
C.O.B.H. § 1479.14(b). There is no provision in the ordinance for preserving the status quo pending judicial resolution of a dispute between a sign owner seeking a permit and the city.
23
The ordinance does not guarantee a prompt judicial determination reviewing the denial of a permit. There is no time limit within which the Council must make a decision and the Building Commissioner must issue a permit. An applicant denied a permit must appeal that decision to the Board. C.O.B.H. § 1440.25(a). The Board’s decision on appeal may issue as late as 60 days after the denial of a permit.
Id.
If the applicant is dissatisfied with the Board’s decision, the applicant may then appeal to the Court of Common Pleas of Cuyahoga County. C.O.B.H. § 1440.25(f). There is no guarantee under Ohio law as to when the reviewing court will reach a determination in the matter. “While we trust state courts to exercise due diligence, we cannot be sure that a state judge, who often is elected and toiling under a busy
*802
docket, will conduct a hearing and render a decision in a prompt manner.”
Nightclubs,
202 F.3d at 892 .
The ordinance and the related provisions at C.O.B.H. § 1440.25 put the burden of going to court on the applicant, not on the censor. Moreover, if the applicant seeks a temporary or permanent injunction to prevent the city from enforcing the ordinance, the burden of proof is on the party seeking the injunction, and that party must prove the necessity for an injunction by clear and convincing evidence.
See, e.g., Procter & Gamble Co. v. Stoneham,
140 Ohio App.3d 260, 267-68 , 747 N.E.2d 268, 273 (2000);
Rein Constr. Co. v. Trumbull County Bd. of Comm’rs,
138 Ohio App.3d 622, 630-31 , 741 N.E.2d 979, 985-86 (2000).
In sum, Broadview Heights’ sign ordinance lacks every procedural perquisite for a valid permit scheme. Even if the ordinance were a content-neutral regulation of speech, the permit scheme in the ordinance would be invalid.
Broadview Heights argues that the permit scheme is a valid, content-neutral use of its police powers aimed at the secondary effects of First Amendment activity rather than at the activity itself. This argument is unavailing, for two reasons.
First, as has already been shown, the permit scheme is
not
content-neutral. Broadview Heights contends that the ordinance is content-neutral despite the differential treatment accorded signs on the basis of content and despite the differential treatment accorded differing speakers because the ordinance does not justify its sign restrictions by reference to the content of the signs. But the only kind of restrictions on speech that are considered content-neutral for First Amendment purposes despite making content-based distinctions are restrictions affecting sexually-explicit speech. Sexually-explicit speech is accorded less protection than other kinds of speech because of a reduced societal interest in protecting such expression
24
The speech at issue in the instant case includes political and religious speech deserving the greatest protection afforded by the First Amendment.
Second, even if the permit scheme in Broadview Heights’ sign ordinance could be considered a content-neutral use of its police powers aimed at the secondary effects of First Amendment activity rather than at the activity itself, the permit scheme would still be invalid. When a content-neutral ordinance aimed at the secondary effects of protected speech incidentally restricts that speech, the constitutional test of the restrictions employed in
O’Brien
is used.
See Pap’s AM.,
529 U.S. at 294-302, 120 S.Ct. 1382 . That test requires that the incidental restriction on protected speech be narrowly tailored so that the restriction is no greater than is essential to further the government’s interest.
O’Brien,
391 U.S. at 377 , 88 S.Ct. 1673 ;
see also Turner Broad.,
512 U.S. at 662 , 114 S.Ct. 2445 ;
Ward,
491 U.S. at 799 , 109 S.Ct. 2746 (finding that the regulation must not “burden substantially more speech than is necessary to further the government’s legitimate interests”). But the restrictions in the ordinance are not narrowly tailored to further Broadview Heights’ legitimate interests in traffic safety, aesthetics, and maintaining property
*803
values. Many of the restrictions in the ordinance have no obvious connection to these interests.
See supra,
pp. 790-92. Moreover, the ordinance effected by the permit scheme is substantially overbroad.
See supra
pp. 785-89. The ordinance severely limits the use of residential signs, effectively bars the use of signs to all political speech not connected with a political campaign, bars the use of signs to individuals wishing to express religious or other personal messages, and imposes burdens on non-commercial speech it does not impose on commercial speech. Such a regulation cannot pass any test which requires narrowly tailored legislation.
The permit scheme in Broadview Heights’ sign ordinance lacks every procedural safeguard required of a valid permit scheme, is not a content-neutral use of Broadview Heights’ police powers aimed at the secondary effects of First Amendment activity, and would fail the test of intermediate scrutiny even if the permit scheme were considered content-neutral. For these reasons the permit scheme in the ordinance is an impermissible prior restraint of speech.
F. Severability
XXL contends that the unconstitutional portions of Broadview Heights’ sign ordinance are not severable from the constitutional portions of the ordinance. Defendants contend that these portions of the ordinance are severable.
1. The standard for severability
“Severability of a local ordinance is a question of state law....”
Lakewood v. Plain Dealer Publishing Co.,
486 U.S. 750, 772 , 108 S.Ct. 2188 , 100 L.Ed.2d 771 (1988). Ohio Rev.Code § 1.50 provides that statutory provisions are presumptively severable:
If any provisions of a section of the Revised Code or the application thereof to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of the section or related sections which can be given effect without the invalid provision or application, and to this end the provisions are severable.
A court may only sever a portion of a statute, however, if the severance “will not fundamentally disrupt the statutory scheme of which the unconstitutional provision is a part.”
State ex rel. Maurer v. Sheward,
71 Ohio St.3d 513, 523 , 644 N.E.2d 369 , 377 (1994). Ohio uses a three part test to determine whether a portion of a statutory scheme is severable:
(1) Are the constitutional and the unconstitutional parts capable of separation so that each may be read and may stand by itself? (2) Is the unconstitutional part so connected with the general scope of the whole as to make it impossible to give effect to the apparent intention of the Legislature if the clause or part is stricken out? (3) Is the insertion of words or terms necessary in order to separate the constitutional part from the unconstitutional part, and to give effect to the former only?
State v. Hochhausler,
76 Ohio St.3d 455, 464-65 , 668 N.E.2d 457, 466-67 (1996) (quoting
Geiger v. Geiger,
117 Ohio St. 451, 466 , 160 N.E. 28, 33 (1927));
see also Women’s Medical Prof'l Corp. v. Voinovich,
130 F.3d 187 , 202 (6th Cir.1997). A provision must pass all three parts of the test to be severable.
See Maurer,
71 Ohio St.3d at 523 , 644 N.E.2d at 377-78;
Geiger,
117 Ohio St. at 466 , 160 N.E. at 33 .
Federal courts must take particular care not to infringe on state power by altering state law to preserve constitutionality. Federal courts may not “rewrite statutes to create constitutionality.”
Eubanks,
937
*804
F.2d at 1122. The Sixth Circuit has emphasized, “A federal court must always be aware of the federalism concerns that arise whenever it deals with state statutes. ‘The principles of federalism forbid a federal appellate court to arrogate the power to rewrite a municipal ordinance.’ ”
Triplett Grille,
40 F.3d 129 at 136 (quoting
Eubanks,
937 F.2d at 1125 (citation omitted)).
2. Severability and violations of the First Amendment in the ordinance
The unconstitutional portions of Broadview Heights’ sign ordinance are not severable from the constitutional portions of the ordinance. In addition to the impermissible, particular content-based distinctions found throughout the ordinance, the unconstitutional classification according to use types at C.O.B.H. § 1479.03(a) underlies the ordinance as a whole. Without that system of classifications, most of the distinctions in the sign ordinance disappear, and the remaining ordinance cannot stand by itself as a coherent system. Such a change would fundamentally disrupt the current statutory scheme for regulating signs.
Nor is the permit scheme at C.O.B.H. § 1479.13 severable from the rest of the ordinance. With the exception of some temporary signs, all permanent and temporary signs require permits. If the scheme for granting permits is unconstitutional, a court cannot determine whether the council would prefer that all signs be allowed without a permit. Once the permit scheme is stricken, a court cannot give effect to the intention of the council in that contingency because the council’s intention is not known.
Likewise, the ban on pole signs cannot be severed from the rest of the ordinance because it is only unconstitutional in conjunction with the list of exemptions from the regulations at C.O.B.H. § 1479.18. Once again, a court cannot know whether the council would prefer that the ban on pole signs be struck to preserve the exemptions or whether the exemptions should be struck to preserve the ban on pole signs. Absent a knowledge of legislative intention, a court cannot sever a portion of the ordinance to preserve that intention.
G. Conclusions
The magistrate judge concludes that those portions of Broadview Heights’ sign ordinance which violate the First Amendment are not severable from the portions which do not violate the First Amendment. For this reason the magistrate judge recommends that the court grant XXL’s motion for summary judgment as to its claims that the sign ordinance makes impermissible content-based distinctions in regulating non-commercial speech, impermissibly restricts non-commercial speech, makes impermissible content-based distinctions in regulating commercial speech, impermissi-bly allows some speakers and not others to use pole signs, and is an impermissible prior restraint on speech. The magistrate judge also recommends that the court overrule defendants’ motion for summary judgment as to these claims. Because those portions of the sign ordinance which violate the First Amendment are not sev-erable from those portions of the ordinance which do not violate the First Amendment, the magistrate judge further recommends that the court overturn Broadview Heights’ sign ordinance in its entirety.
25
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VI. Vagueness claim
XXL claims that Broadview Heights’ sign ordinance is void for vagueness because many of the ordinance’s provisions are ambiguous and open to varying interpretations. Defendants reply that XXL is not entitled to challenge the ordinance as void for vagueness because “in cases not involving First Amendment freedoms, a person to whose conduct a statute clearly applies may not successfully challenge other portions of the statute on grounds of vagueness.” Def. mot. at 13. Because defendants’ characterization of the case as not involving First Amendment freedoms is mistaken, the court will examine the merits of XXL’s claims that many of the provisions of Broadview Heights’ sign ordinance are impermissibly vague.
A. The standard for determining impermissible vagueness
An ordinance is void for vagueness if its terms are not reasonably clear. The vagueness doctrine has two goals: to ensure fair notice to citizens and to provide standards for law enforcement.
Kolender v. Lawson,
461 U.S. 352, 357 , 103 S.Ct. 1855 , 75 L.Ed.2d 903 (1983);
Belle Moer Harbor v. Charter Township of Harrison,
170 F.3d 553, 556 (6th Cir.1999). The first
goal
requires that citizens understand what a law says. “A statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law.”
Columbia Natural Res., Inc. v. Tatum,
58 F.3d 1101 , 1105 (6th Cir.1995) (quoting
Connally v. General Const. Co.,
269 U.S. 385, 391 , 46 S.Ct. 126 , 70 L.Ed. 322 (1926)). The second goal requires precision to ensure fair enforcement. “A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application.”
Grayned v. City of Rockford,
408 U.S. 104, 108-09 , 92 S.Ct. 2294 , 33 L.Ed.2d 222 (1972).
Courts require greater precision when laws define criminal offenses or impinge on protected speech.
Hynes v. Mayor and Council of the Borough of Oradell,
425 U.S. 610, 620 , 96 S.Ct. 1755 , 48 L.Ed.2d 243 (1976);
see also Marks v. United States,
430 U.S. 188, 196 , 97 S.Ct. 990 , 51 L.Ed.2d 260 (1977) (“We have taken special care to insist on fair warning when a statute regulates expression and implicates First Amendment values.”). “Uncertain meanings inevitably lead citizens to ‘steer far wider of the unlawful zone’ ... than if the boundaries of the forbidden areas were clearly marked”
Grayned,
408 U.S. at 109, 92 S.Ct. 2294 (quoting
Baggett v. Bullitt,
377 U.S. 360, 372 , 84 S.Ct. 1316 , 12 L.Ed.2d 377 (1964)). Thus, if an ordinance “interferes with the right of free speech ..., a more stringent vagueness test should apply.”
Village of Hoffman Estates,
455 U.S. at 499 , 102 S.Ct. 1186 .
See also Hynes,
425 U.S. at 620 , 96 S.Ct. 1755 (“The general test of vagueness applies with particular force in review of laws dealing with speech.”);
Belle Maer Harbor,
170 F.3d at 557 (“An enactment ... reaching a substantial amount of constitutionally protected conduct may withstand facial constitutional scrutiny only if it incorporates a high level of definiteness.”). Vague laws which impinge on protected speech are especially dangerous because they fail to provide precise standards for enforcement:
The absence of clear standards guiding the discretion of the public official vested with the authority to enforce the enactment invites abuse by enabling the official to administer the policy on the basis of impermissible factors.... We will not presume that the public official responsible for administering a legislative policy will act in good faith and
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respect a speaker’s First Amendment rights; rather, the vagueness “doctrine requires that the limits the [government] claims are implicit in its law be made explicit by textual incorporation, binding judicial or administrative construction, or well-established practice.” Thus, a statute or ordinance offends the First Amendment when it grants a public official “unbridled discretion” such that the official’s decision to limit speech is not constrained by objective criteria, but may rest on “ambiguous and subjective reasons.”
United Food & Commercial Workers Union, Local 1099 v. Southwest Ohio Reg’l Transit Auth.,
163 F.3d 341, 359 (1998) (citations omitted).
The vagueness doctrine does not require absolute precision from lawmakers, however. Ambiguity is inherent in language. “Condemned to the use of words, we can never expect mathematical certainty from our language.”
Grayned,
408 U.S. at 110, 92 S.Ct. 2294 . Moreover, “[i]t will always be true that the fertile legal ‘imagination can conjure up hypothetical cases in which the meaning of (disputed) terms will be in nice question.’ ”
Grayned,
408 U.S. at 112 n. 15, 92 S.Ct. 2294 (quoting
American Communs. Assn. v. Douds,
339 U.S. 382, 412 , 70 S.Ct. 674 , 94 L.Ed. 925 (1950)). Valid laws may be written with “flexibility and reasonable breadth, rather than meticulous specificity,”
Esteban v. Central Missouri State College,
415 F.2d 1077, 1088 (8th Cir.1969), if “a reasonable person ... would be able to interpret ... what is required and what conduct is prohibited.”
Greenville Women’s Clinic v. Commissioner,
317 F.3d 357 , 366 (2002).
See also Grayned,
408 U.S. at 108, 92 S.Ct. 2294 ;
Belle Maer Harbor,
170 F.3d at 557 .
B. Vagueness in the sign ordinance
XXL cites 49 provisions in the sign ordinance which it alleges are impermissibly vague.
See
PI. mot., Exh. 58. Most of the provisions of the sign ordinance to which XXL objects are not so vague that a reasonable person would not know what is required and what is prohibited.
26
Some provisions of the ordinance are not mandates or prohibitions and do not affect mandates or prohibitions in other portions of the ordinance. Any alleged vagueness in these provisions raises, therefore, no constitutional problems.
27
Some terms in the sign ordinance, however, are impermissibly vague.
The meaning of “public function” in the definition of a special event sign as a sign “which may be in the street right of way announcing a public function” is unacceptably vague. C.O.B.H. § 1479.03(a)(2)(D). Whether either a free promotional concert sponsored by a commercial business or a concert to which tickets are sold to the public is a “public function” cannot be determined from the statute. If a person cannot determine what a “public function” is, that person cannot determine whether the ordinance is offended by placing a sign announcing an event in the street right of way.
The meaning of “nearby location” in the definition of a temporary directional sign as a sign which is “[a] ground sign directing vehicular or pedestrian traffic to a
*807
temporary activity taking place at another, but nearby, location, such as an open house sign for the sale of real estate” is unacceptably vague. A person cannot determine at what distance posting a sign announcing a garage sale offends the ordinance because the sign is no longer “nearby.”
The meaning of “general area” in the specification that “if such sign is attached to a wall or other man-made base, including a graded earth mound, the sign height shall be measured from the grade of the general area” is unfathomable. C.O.B.H. § 1479.04(b). The incomprehensibility of this phrase prevents an individual from determining whether some signs offend the height limits of the ordinance.
The requirement that a sign “should be in harmony with the building(s) [sic] ... use” has no readily understood meaning. C.O.B.H. § 1479.05(a).
The meanings of “overly large,” “out of scale with the building,” and “excessive amount of information” in the following are impermissibly vague: “[Lettering shall not be overly large or out of scale with the building. An excessive amount of information that could create a potential safety hazard shall not be permitted.” C.O.B.H. § 1479.05(b). A person of average intelligence cannot know from this provision when the size of lettering or the amount of information on a sign offends the ordinance.
The precise meaning of the requirement that “[s]igns shall be fabricated on and of materials ... complimentary to their building” cannot be determined from the ordinance. C.O.B.H. § 1479.05(c).
The meaning of “uniform” is unclear in the warning to the owner of a building leased to multiple tenants that “[a]ll approvals for subsequent tenants’ signs shall be uniform with the approvals for initial tenants’ signs.” C.O.B.H. § 1479.09. In what respects subsequent signs are expected to be “uniform” with previous signs cannot be determined from the ordinance.
The meaning of “essential to directing and instructing” is unclear in the following provision:
Permanent information signs at fuel pumps and sérvice islands are permitted. Such signs shall be limited to the display of information regarding the type of service provided and other information essential in directing and instructing the motoring public, as approved by the Planning Commission.
C.O.B.H. § 1479.09(d)(4)(D). What is “essential” direction and instruction and in what respects the motoring public may be directed and instructed by such signs without offending the ordinance is impermissi-bly vague.
The meaning of “community facility” is unclear, ■ C.O.B.H. § 1479.11. An individual cannot determine from the ordinance what a community facility is or whether it may be privately owned. Consequently, whether a privately owned facility is permitted to post signs according to the provisions applicable to community facilities without offending the ordinance is not known.
The meaning of “community special event” in the admonition that “community special event signs shall not be displayed for period [sic] of greater than two weeks” is entirely unclear. C.O.B.H. § 1479.12(c)(5).
The. requirement that information signs “[b]e located relative to similar signs otherwise permitted in that district” is without fathomable meaning. C.O.B.H. § 1479.12(d)(2).
The meaning of “similar signs of a personal nature” in the provision that a permit is not required to post “[g]arage sale signs or other similar signs of a personal nature-in a residential district,” C.O.B.H.
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§ 1479.13(b)(3), is impermissibly unclear, as has already been discussed.
See supra,
p. 787 n. 13.
The following provision of the ordinance has two problems with impermissible vagueness:
The Building Commissioner shall examine the application and verify conformance with the requirements of this chapter, as well as the location and relationship to signs currently existing .... The Board shall review the application and drawings for appropriateness of size, scale, shape, color, and illumination in relation to building size.
C.O.B.H. § 1479.13(d). First, what an individual must do to ensure that signs pass inspection when the Building Commissioner verifies “relationship to signs currently existing” cannot be determined from the ordinance. Second, what is appropriate “size, scale, shape, color, and illumination in relation to building size” is too vague for a person of reasonable intelligence to know what the provision mandates or prohibits.
The requirement at C.O.B.H. § 1479.15(a) suffers from an ambiguity created by the preceding section of the ordinance. Section 1479.14 requires that “[a]ll signs and sign structures shall be maintained in a safe and attractive condition.” Section § 1479.15(a) warns that “[a]ny lawful nonconforming sign may be maintained and the structural or electrical parts repaired or restored to a safe condition only if required by law.” It is unclear if the framers of the ordinance meant the requirement to maintain signs and sign structures at C.O.B.H. § 1479.14 as a legal requirement satisfying the phrase “required by law” in C.O.B.H. § 1479.15(a) or if the framers meant a legal requirement other than the requirements in the sign ordinance itself. The plain meaning of C.O.B.H. § 1479.15(a) allows an individual to maintain a nonconforming sign by virtue of the requirement at C.O.B.H. § 1479.14. This plain meaning makes the provision at C.O.B.H. § 1479.15(a) contradictory, since an individual would
always
be allowed to maintain a nonconforming sign despite the restrictions in that subsection.
The meaning of “similar information” in the provision that “[cjornerstones and permanent building plaques, displaying the date of construction, the building name or similar information” are exempt from the sign regulations is impermissibly vague. C.O.B.H. § 1479.18(a).
The meaning of “customary periods of time” in the provision that “[hjoliday decorations displayed for customary periods of time” are exempt from the sign regulations is impermissibly vague. It is impossible to determine, for example, which times for the display of Christmas decorations are customary when retailers routinely display Christmas decorations on Halloween. In general, a person of reasonable intelligence cannot determine precisely when any “customary” period begins and ends or whose customs count in making such a determination.
The meanings of “special signage” and “reasonable” in the provision that “[s]pe-cial signage determined by the Architectural Review Board to be reasonable considering the intent and regulations of this Chapter” are impermissibly vague. A person of reasonable intelligence cannot determine what signs are “special signage” and precisely when they are reasonable taking the ordinance as a whole.
Because a person of reasonable intelligence cannot know with adequate precision what the sign ordinance mandates or prohibits in the preceding provisions, those provisions should be found void for impermissible vagueness.
C. Severability of impe

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/2458684. Public record. Not legal advice.