Pagan v. Fruchey

492 F.3d 766, 2007 U.S. App. LEXIS 15524, 2007 WL 1853692
Court of Appeals for the Sixth Circuit·Decided June 29, 2007·No. 04-4414·Published·Cited by 46 cases

Opinions

GIBBONS, J., delivered the opinion of the court, in which BOGGS, C.J., MARTIN, DAUGHTREY, MOORE, COLE, CLAY, and GILMAN, JJ„ joined. ROGERS, J. (pp. 779-89), delivered a separate dissenting opinion, in which SILER, BATCHELDER, SUTTON, COOK, McKEAGUE, and GRIFFIN, JJ., joined.

[769] OPINION

JULIA SMITH GIBBONS, Circuit Judge.

Plaintiff-appellant Christopher J. Pagan filed the instant suit against the Village of Glendale, Ohio (“Glendale” or “the Village”) and Glendale Police Chief Matt Fruchey, alleging that section 76.06 of the Glendale Traffic Code constitutes an unconstitutional restriction on commercial speech in violation of the First Amendment. Following the parties’ cross-motions for summary judgment, the district court determined that Glendale’s ordinance complied with the requirements of Central Hudson Gas & Electric Corp. v. Public Service Commission of New York, 447 U.S. 557, 100 S.Ct. 2343, 65 L.Ed.2d 341 (1980), and granted summary judgment in favor of the defendants. Because we conclude that the defendants have failed to produce evidence that justifies the restrictions on commercial speech imposed by the ordinance, we reverse the decision of the district court and remand for further proceedings consistent with this opinion.1

I.

Pagan is a resident of Glendale and formerly the owner of a 1970 Mercury Cougar that he wanted to sell. After a classified advertisement elicited an inadequate response, Pagan posted a “For Sale” sign on the vehicle and left it parked on the public street in front of his residence. Pagan elected to place the car on the street instead of his driveway because his driveway abuts an unimproved alley and not a public roadway.

An officer with the Glendale Police Department noticed the sign, notified Pagan that the sign was a violation of Glendale Traffic Code § 76.06, and asked him to remove it or face being cited for a municipal violation; Section 76.06 reads as follows:

It shall be unlawful for any person to stand or park any vehicle, motorized or towed, upon any public or private street, road, or highway within the village or upon any unimproved privately owned area within the village for the purpose of:
(A) Displaying it for sale, except that a homeowner may display a motor vehicle, motorized or towed, for sale only when owned and titled to said homeowner and/or a member of said household, and only when parked upon an improved driveway or apron upon the owner’s private property;
(B) Washing, maintaining or repairing such vehicle except repairs necessitated by an emergency.
(C) Any advertising.

Pagan corresponded with various Glendale officials, including Fruchey, but was ultimately unsuccessful in obtaining a satisfactory resolution of his dispute with the Village. In order to avoid a citation, Pagan removed the sign from his vehicle.

Pagan subsequently filed this lawsuit against Fruchey and Glendale, alleging a violation of his constitutional rights and challenging subsections (A) and (C) of the ordinance. Pagan’s original complaint contained requests both for injunctive relief and damages, but Pagan voluntarily [770] withdrew his request for an injunction. Both before the district court and before us on appeal, Pagan has argued that subsections 76.06(A) and (C) constitute impermissible restrictions on his right to engage in protected commercial speech.2 Following the parties’ cross-motions for summary-judgment, the district court determined that section 76.06 was a constitutional regulation of commercial speech under the Supreme Court’s Central Hudson framework and granted summary judgment to the defendants. Pagan subsequently appealed.

II.

This court reviews the grant of summary judgment de novo. DiCarlo v. Potter, 358 F.3d 408, 414 (6th Cir.2004). Summary judgment will be affirmed if “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed. R.Civ.P. 56(c). If, on the other hand, “a reasonable jury could return a verdict for the non-moving party,” summary judgment for the moving party is inappropriate. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In reviewing the district court’s decision, this court draws all justifiable inferences in favor of the non-moving party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).

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Pagan v. Fruchey, 492 F.3d 766, 2007 U.S. App. LEXIS 15524, 2007 WL 1853692 (6th Cir. 2007).

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