North Olmsted’s Prior Restraint and Content-based Sign Code

The following article originally appeared in the December 1999 issue of Signs of the Times magazine.

By John Yarger, Esq., and Jennifer Flinchpaugh

On Aug. 17, Federal Magistrate Judge Patricia Hemann of Ohio’s Northern District filed her “Report and Recommendations” regarding the North Olmsted Chamber of Commerce vs. City of North Olmsted lawsuit. In her 61-page report, Hemann recommended that Federal Judge Donald Nugent should overturn the North Olmsted (OH) sign code for violating the First Amendment. This article briefly summarizes portions of her report.

Prior restraint
Hemann found that the code imposes unconstitutional prior restraint on commercial speech because it requires that the City’s building commission examine signage to determine size, placement and permissible content before issuing permits.

For example, under the code, “identification signs” are regulated differently than “informational signs.” Thus, to determine the size and characteristics allowable on a given sign, the building commission needs to look at what a sign says. Message content is an unconstitutional pre-condition for determining how a sign is regulated.

General conclusion: Codes that define signs based on content, or codes that regulate various types of content differently, are likely to be declared unconstitutional.

Decision-maker’s discretion
The magistrate judge ruled the code does not adequately limit the decision maker’s discretion to award permits. The code asks the building official to consider “the design and size of all signs so their appearance will be aesthetically harmonious with an overall urban design for the area.” However, the code does not explain how “aesthetic harmony” will be achieved.

Likewise, the code offers no direction regarding other decisions required of building officials, e.g., “The number, location and design of organizational signs shall be approved by the building official.”

General conclusion: Imprecise or open-ended criteria that allow the decision maker substantial discretion to approve or deny sign-permit applications are likely to be declared unconstitutional.

Commercial discrimination
A code is not unconstitutional merely for content-based discrimination of commercial speech. However, for such discrimination to be allowable, it must directly and materially contribute to a “substantial state interest” and must do so in a “narrowly tailored” manner, based on the 1980 Central Hudson Supreme Court case.

North Olmsted attorneys declared traffic safety and aesthetics as the “substantial state interests” at risk. However, the City failed to show that these interests are directly and materially advanced by the code’s content- based distinctions. Furthermore, the City could not demonstrate that these provisions are “narrowly tailored.”

General conclusion: Cities cannot use traffic safety and aesthetics to justify a sign code without showing a clear connection between the code and these interests. A city must care fully draft rationale for achieving these goals in a direct and meaningful way.

Non-commercial discrimination
The code includes content-based distinctions for non-commercial speech. Such speech receives nearly full protection under the First Amendment. Examples include time-and-temperature signs, identification signs, organizational signs (defined as national, state and local service clubs) and murals. Election signs enjoy complete exemption from ordinance provisions.

Exempting some non-commercial speech – while regulating other non-commercial speech – is unconstitutional unless there is a “compelling state interest.” As previously mentioned, the City argued that traffic safety and aesthetics are “compelling state interests.” However, the magistrate judge determined, “No court has ever found either traffic safety or aesthetic concerns to be a compelling government interest . . . ” Furthermore, the provisions are not “narrowly tailored” to advance these interests.

General conclusion: Distinctions in sign codes that affect or regulate types of non-commercial speech differently – including time-and-temperature signs, informational signs, identification signs, organizational signs and murals  – are likely unconstitutional.

Selective pole-sign prohibition
The sign code prohibits all pole signs except for “official” uses, including temporary displays, charity signs and election signs. Hemann ruled that while the language in this section of the code is content-neutral, the exemptions are content-based. Consequently, some types of non-commercial speech are privileged under the code.

As noted above, differences in regulations for non-commercial speech must directly serve a “compelling state interest.” The City was unable to satisfy this strict requirement.

General conclusion: Any exemptions for non-commercial speech are likely to be found unconstitutional.

Violation of equal-protection clause
The code provides that informational signs are allowed only for “public” and “semi-public” uses. The magistrate judge determined that limiting signs for “semi-public uses” is unclear, but the limitation is most likely directed at message content and, therefore, subject to strict scrutiny.

In his brief, the plaintiffs’ co-counsel, Thomas A. Cunnif, Esq., of Hahn Loeser-Parks LLP (Cleveland), cited an example to illustrate this point.

Under the code, the City can post a sign asking, “Is the Chamber of Commerce un-American?” However, the Chamber cannot post a sign asking, “Is the City unfair to business?”

Again, the City failed to show that the code’s provisions are necessary to serve a “compelling state interest,” or that they are “narrowly tailored” to serve that interest.

General conclusion: Limiting certain types of non-commercial speech on the basis of content is nearly always unconstitutional.

Vague provisions
An ordinance’s terms must be “reasonably clear,” ensuring fair notice to citizens and providing law-enforcement standards. Vague laws impinging on free speech are seldom found constitutional. Although many portions of the code are vague, the court found two terms impermissibly vague.

First, the magistrate judge found the term “semi-public” to be “unfathomable.” Second, the provision requiring the building official to issue sign permits by considering “signs . . .  reasonably expected to be erected in the vicinity of the proposed sign location . . .” allows nearly total arbitrary and discriminatory decisions.

General conclusion: Cities seeking to provide more flexible zoning provisions must define terms and not leave unfettered discretion to the decision maker.

Final conclusions
Although several of the magistrate judge’s claims did not favor the North Olmsted Chamber of Commerce, Hemann said the code violated numerous constitutional provisions. As such, she recommended the code be overturned immediately.

“It is of particular significance that Magistrate Judge Hemann ruled North Olmsted’s sign ordinance be revoked en toto,” says the plaintiffs’ co-counsel, Robert J. Fogarty, Esq., of Hahn Loeser-Parks. “This en toto ruling means every prohibition in the 1991 sign ordinance has been thrown out, and the City of North Olmsted must start over again to create a constitutionally acceptable set of ordinances . . . We are confident that the Magistrate Judges reasoning is correct.”

Both Hahn Loeser-Parks and the counsel for North Olmsted have filed motions for summary judgment. In essence, Hahn Loeser-Parks’ motions urge Federal Judge Nugent to adopt the decision completely. If Nugent chooses not to do so, the firm has filed other claims regarding vague terminology used in the code.

North Olmsted’s counsel, in contrast, has filed claims basically encouraging Nugent to reject Hemann’s recommendations entirely. At presstime (mid-October), Nugent had made no decision. He may adopt all, part or none of Hemann’s opinion. Either side may then appeal his decision to the Sixth Circuit Court of Appeals.

Hemann’s opinion will likely be this case’s greatest legacy. Her reasoning and numerous citations to case law will surely provide a direction and outline for future cases. Many other sign codes contain sections considered unconstitutional, based on the magistrate judge’s recommendations in this case.

Of Hemann’s recommendations, Patrick Graham, sign committee chairman of the North Olmsted Chamber of Commerce, says. “Business owners and civic organizations should be encouraged by this decision, which will have widespread impact on communities throughout the country that have, or are proposing, content-based sign ordinances. We hope other communities that have enacted such restrictive legislation or have been considering doing so will re-evaluate their position as a result of this ruling.”

Cunniff agrees, saying, “Based on the arguments we put forth in this case, we believe that many sign codes throughout the country are unconstitutional.”

In fact, Hahn Loeser-Parks is “currently evaluating bringing similar actions against other communities based on this decision,” Fogarty says.

The North Olmsted Code: A Brief History
In May 1991, the City of North Olmsted, OH, adopted a comprehensive sign ordinance that banned installation of new pole signs. Further, this ordinance banned existing signs on poles, except for signs featuring official public notices, an emblem of a government body (i.e., a logo for a local recreation center) or charity drives. Approximately 1,000 existing, non-compliant pole signs were allowed to remain standing until Jan. 1, 1998, at which time the city mailed notices of violation to businesses with non-compliant signage.

“Besides banning pole signs. the City had also implemented rules in 1991 prohibiting the posting of a phone number on a sign, a sale or ‘on special’ notice or the mention of more than one product sold,” says Robert J. Fogarty, Esq., of Hahn Loeser-Parks LLP (Cleveland), and co-counsel for the plaintiffs. “For example, the owner of a wine and cheese shop had to choose: They could either put ‘wine’ or ‘cheese’ on their sign, but not both.”

Similarly, an automobile dealership was not allowed to add five stars to its sign to indicate the business’ status as a five-star Dodge retailer. The city ruled the stars were unnecessary because the dealership was not in the business of “selling stars.”

Because of such restrictive, content-based, sign-code provisions, the North Olmsted Chamber of Commerce filed suit against the City of North Olmsted on April 7, 1998.

The Players: Who’s Who in the Sign-Code Suit
The following individuals contributed toward the successful preliminary ruling in the North Olmsted Chamber of Commerce vs. City of North Olmsted case:

  • Robert J. Fogarty, Esq., and Thomas A Cunniff, Esq., Hahn Looser & Parks LLP (Cleveland), who successfully argued for the plaintiffs – specifically, the Chamber of Commerce, Great Northern Dodge, Sunnyside Cars and Richard Moran;
  • Jim Claus, Ph.D.. owner of Claus Consulting and executive director of the Signage Foundation for Communication Excellence (Sherwood, OR), who developed the reasoning that provided the foundation for this suit;
  • Jim Groh, president of Brilliant Electric Sign Co. Ltd. and vice president of the Signage Foundation for Communication Excellence (Cleveland), who served as a witness and persevered to bring the case to court; and
  • Alan Weinstein, JD, associate professor of Law & Urban Studies at the Cleveland-Marshall College of Law (Cleveland), who provided legal expertise.

John Yarger serves as corporate counsel for North American Signs, South Bend, IN. Jennifer Flinchpaugh is senior associate editor for Signs of the Times magazine.

Wade Swormstedt

Wade Swormstedt

Wade is Executive Director of the Foundation for the Advancement of the Sign Industry. Formerly he was Editor and Publisher of Signs of the Times magazine.

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Posted in 1st Ammendment / Freedom of Speech, Amoritzation, Associations, Content Neutrality (Reed v. Gilbert), Sign Codes, Supreme Court.