Frank Wagner v. City of Garfield Heights, Ohio

577 F. App'x 488
Court of Appeals for the Sixth Circuit·Decided August 19, 2014·No. 13-3474·Unpublished·Cited by 2 cases

Opinion

The City of Garfield Heights (“City”) limits the size of signs, political and otherwise, that residents may place on their lawns. Frank Wagner, a City resident, placed a political sign on his lawn that was larger than the City allows. The district court found that the City’s restriction on Wagner’s political speech violates the First Amendment. Because we conclude that the ordinance imposes a content-neutral restriction on the time, place, and manner of speech, and because the City has satisfied the intermediate scrutiny applicable to such regulations, we reverse.

I

A

Garfield Heights is a municipality located in Cuyahoga County, Ohio and forms part of the Greater Cleveland area. Chapter 1140 of the City’s Codified Ordinances regulates the design and placement of signs in the City. See Garfield Heights, Ohio, Codified Ordinances ch. 1140.01 (2013), available at http://www. conwaygreene.com/GarfieldHtsApext.dll? f=templates & fn=main-h.htm & 2.0. The City regulates signs for these reasons:

(a) To maintain high quality districts of all land uses, and attractive public and private facilities of all types, by permitting only signs appropriate to their environs;
(c) To eliminate any conflict between traffic control signs and other signs which would be hazardous to the safety of the motorizing public or pedestrians;
(d) To control the design and size of all signs so that their appearance will be aesthetically harmonious with an overall urban design for the area, in accordance with commonly accepted community planning and design practices, and the City’s Master Plan.

Ch. 1140.01. The City permits residents to display a “single for-sale, sold, for-rent, leasing, open house, religious, holiday or personal sign” in a window or on a lawn. Ch. 1140.361. Such signs must be removed within forty-eight hours “of a con *490 tract for sale, a lease agreement, the end of the holiday, or after otherwise fulfilling [their] purpose.” Ibid. “Political signs,” however, are not subject to the express single-sign limitation. See ch. 1140.362. All lawn signs, political or otherwise, are subject to the same size restriction: they may not exceed 6 square feet in area and must be 4 feet or less in height. Ch. 1140.361, .362.

Additionally, the City imposes a maximum sign-face area for a single lot that is proportional to the lot’s frontage: 1.35 square feet of sign area per foot of frontage. See ch. 1140.27(a). For example, if a lot has a 100-foot-frontage, it has a maximum sign-face area of 135 square feet. But because of the maximum sign-face-area restriction, it could not display a single 135-square-foot sign. It could, however, display twenty-two signs that were each 3-feet high and 2-feet wide; this would constitute a total sign-face area of 132 square feet. If a lot fronts two or more streets, “each street frontage shall be calculated separately, and such individual totals shall apply separately and only to signs directed at those individual streets.” Ibid.

What this scheme means, practically, is that the City permits more political signs than non-political signs in residential districts. Suppose a homeowner has a corner 100-foot-square lot. Her 200-foot-front-age would afford her a maximum sign-face area of 270 square feet. The homeowner could display only one personal or religious sign but could display forty-five political signs measuring 6 square feet. In this respect, at least, the ordinance scheme favors political speech over non-political speech.

A person in violation of any sign ordinance may face a fíne of up to $1,000 per each day that the sign violation occurs. Ch. 1140.99. Failure to remove a political sign within seventy-two hours after an election constitutes a “minor misdemean- or.” Ibid.

B

In September 2011, Wagner placed a political sign on his lawn that measured 4 feet by 4 feet, i.e., 16 square feet. The sign criticized City Councilmember Tracy Mahoney for her position on both the use of traffic cameras and the imposition of a trash tax. Specifically, the sign said: “You do the math Traffic Camera’s [sic] + Rubbish Tax = Mahoney Baloney.” At the far bottom, the sign said in small text: “Paid for by: Frank Wagner, private citizen, 13409 Oakpark Blvd., Garfield Hts., OH 44125.” A picture of the sign appears below:

Councilwoman Mahoney called Mayor Vic Collova to complain about Wagner’s sign. 1 On September 10 — a Saturday— Mayor Collova personally drove by Wagner’s house to view the' sign, which the mayor felt was “obviously larger” than the maximum 6-square-foot limit. That same Saturday, Councilwoman Mahoney also contacted William Wervey, the city’s building commissioner, to complain about the sign; she left Wervey a photograph 2 and phone message requesting that Wervey inspect Wagner’s sign. On Monday, September 12, Commissioner Wervey drove by Wagner’s house, and the sign was not displayed. He informed the mayor of such. On September 17 — again, a Saturday — Mayor Collova received another complaint from Councilwoman Mahoney who *491 informed the mayor that the sign was again displayed on Wagner’s property. Councilwoman Mahoney specifically requested that the City enforce the maximum sign-area limitation against Wagner. That Monday, Mayor Collova instructed the building commissioner to send a letter to Wagner to address the matter.

Wagner received a letter from the City, informing him that his sign was too large and asking him to remove the sign or reduce the size to conform. The letter, dated September 19, informed Wagner that a building inspector recently “had occasion to visit your property.” The letter requested that Wagner give the sign violation his “prompt attention.” It instructed that the violation “must be corrected” by September 23 — four days from the date of the letter. The City maintains that it “did not threaten Mr. Wagner with prosecution in the Garfield Heights Municipal Court if the political sign was not removed by September 28, 2011.” The City’s letter, however, states: if the violation is not corrected “by September 23, 2011,” “we have no choice but to proceed with legal action in the Garfield Heights Municipal Court.”

Wagner removed the sign. He then sued the City, seeking a declaratory judgment that ch. 1140.362, the political-sign ordinance, was unconstitutional under the Federal and Ohio Constitutions. He sought to enjoin enforcement of the ordinance. Additionally, he moved for a temporary restraining order and preliminary injunction against the City. The district court granted Wagner’s motion as to him but denied it as to others, and it ordered the City to allow Wagner to display his 16-square-foot sign until November 7, 2011. 3 The City counterclaimed, seeking a declaratory judgment that the ordinances regulating political signs were constitutional. The parties both moved for summary judgment.

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Frank Wagner v. City of Garfield Heights, Ohio, 577 F. App'x 488 (6th Cir. 2014).

577 F. App'x 488 (Frank Wagner v. City of Garfield Heights, Ohio) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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