Orange Barrel Media, LLC et al v. City of Cleveland
Filing
9
Memorandum Opinion and Order: This matter is before the Court upon Plaintiffs' Motion for Temporary Restraining Order and Request for Hearing on Preliminary Injunction. (Doc. 2 ) Defendant City of Cleveland was afforded notice of the motion and an opportunity to respond. The City filed a Motion to Dismiss and Opposition to [Plaintiffs'] Motion for Temporary Restraining Order. (Doc. 6 ) For the reasons stated below, Plaintiff's Motion for Temporary Restraining Order and Request for Hearing on Preliminary Injunction is denied. Judge Patricia A. Gaughan on 9/1/11. (LC,S) re 7
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
Orange Barrel Media, LLC, et al.,
Plaintiffs,
vs.
City of Cleveland,
Defendant.
)
)
)
)
)
)
)
)
)
CASE NO. 1: 11 CV 1749
JUDGE PATRICIA A. GAUGHAN
Memorandum of Opinion and Order
This matter is before the Court upon Plaintiffs’ Motion for Temporary Restraining
Order and Request for Hearing on Preliminary Injunction. (Doc. 2.) Defendant City of
Cleveland was afforded notice of the motion and an opportunity to respond. The City filed a
Motion to Dismiss and Opposition to [Plaintiffs’] Motion for Temporary Restraining Order.
(Doc. 6.) For the reasons stated below, Plaintiff’s Motion for Temporary Restraining Order
and Request for Hearing on Preliminary Injunction is denied.
I. Standard of Review
Federal R. Civ. P. 65 governs the issuance of temporary restraining orders and
preliminary injunctions. In considering a motion for a preliminary injunction, the district
1
court considers four factors: (1) whether the movant has a strong likelihood of success on the
merits; (2) whether the movant will suffer irreparable injury without the injunction; (3)
whether the injunction will cause substantial harm to others; and (4) whether the injunction
would serve the public interest. Rock and Roll Hall of Fame and Museum, Inc. v. Gentile
Productions, 134 F.3d 749, 753 (6th Cir. 1998).
These factors are not prerequisites but instead must be balanced. Capobianco v.
Summers, 377 F.3d 559, 561 (6th Cir. 2004). See also Michigan Bell Tel. Co. v. Engler, 257
F.3d 587, 592 (6th Cir. 2001) (no single factor is determinative). The decision whether or not
to issue a preliminary injunction falls within the sound discretion of the district court. See
Friendship Materials, Inc. v. Michigan Brick, Inc., 679 F.2d 100, 102 (6th Cir. 1982). While
none of the factors to be considered is given controlling weight, a preliminary injunction
should not be issued where there is no likelihood of success on the merits. See Michigan
State AFL-CIO v. Miller, 103 F.3d 1240, 1249 (6th Cir. 1997).
II. Background Facts
Only the facts necessary for a resolution of the pending motion for a temporary
restraining order are set forth herein. In 2006, as part of settlement agreement with Clear
Channel Outdoor, Incorporated (“Clear Channel”), the City adopted legislation that became
codified in the City’s Zoning Code as Cleveland Codified Ordinance § 350.161, entitled
“Wall Murals.” (Def. Ex. B.) Ordinance § 350.161 became effective in January 2007. The
ordinance permits a maximum of six wall murals to be erected in various parts of the City and
sets forth requirements and procedures for obtaining a permit to erect a wall mural. Among
other requirements, in order to obtain a permit for a wall mural, the ordinance requires that
2
the applicant obtain a permit under Section 3113.03 of the City’s Building Code. Ordinance §
350.161, ¶ (g)(1).
Plaintiff Orange Barrel Media, LLC (Orange Barrel) is an advertising company that
specializes in large, outdoor wall murals. Plaintiff Stark 1350, LLC (Stark) is a property
owner whose sole property is located at 1350 West 3rd Street in downtown Cleveland.
Plaintiffs allege that they have been unable to obtain permission from the City to erect wall
murals under Ordinance § 350.161 despite repeated attempts to do so since 2007. (Verified
Complt., ¶ 27.) For example, plaintiffs allege that they filed applications for wall mural
permits in November 2009 and May 2010, but the City refused to accept their applications,
stating that no permits were available. (Verified Complt., ¶¶ 28-29.) In addition, plaintiffs
allege that Stark again attempted to filed applications for wall mural permits for two of the
exterior walls on its property in November 2010, but the City has taken “the indefensible
position that such applications were never accepted or approved.” (Verified Complt., ¶ 32.)
Despite their assertion that the City has refused to grant them permission to erect wall
murals, plaintiffs allege that they, in fact, have obtained valid permits to erect wall murals
under Ordinance § 350.161; specifically, for wall murals recently erected by Orange Barrel at
1350 West Third Street and 833 Superior Avenue. (Verified Complt., ¶42.) Plaintiffs assert
that they submitted applications to erect wall murals on these properties on November 30,
2010 and December 28, 2010 respectively, but the City failed either to explicitly deny or
grant their applications. Therefore, plaintiffs contend, they have valid permits for wall murals
by virtue of paragraphs (j)(1) and (2) the ordinance. Paragraph (j)(1) provides that the City
“shall grant or deny [an] application” in writing within a maximum of 120 days after
3
receiving the application; paragraph (j)(2) states that “[t]he application shall be deemed
granted if not denied in accordance with this section.” Ordinance § 350.161, ¶¶ (j)(1),(2).
After City’s Board of Building Standards and Building Appeals ordered plaintiffs’
walls murals to be removed, taking the position that the murals were erected without the
approval of the City and without permits as required under Cleveland Codified Ordinance §
3113.03, plaintiff initiated an administrative appeal regarding the City’s action in state court.
Litigation concerning the wall murals plaintiffs erected at 1350 West Third Street and 833
Superior Avenue is currently pending in Stark 1350, LLC, et al. v. City of Cleveland, CV759856 (Cuyahoga County Court of Common Pleas) and 1460 Ninth Street Associates L.P., et
al. v. City of Cleveland, CV-759858 (Cuyahoga County Court of Common Pleas). The cases
were consolidated in Stark, CV-759856.1
On July 22, 2011, the state court granted a 30-day stay, prohibiting the City from
removing the two murals. However, on August 19, 2011, the state court denied plaintiffs’
motion to extend the stay and, on August 22, 2011, the state court issued an order granting a
motion by the City to remove the murals.
After plaintiffs discovered the state court’s intention not to extend the stay, plaintiffs
filed this action (with new counsel) in federal court. Plaintiffs’ Verified Complaint alleges
three causes of action. Count I asserts an “as applied” First Amendment challenge to
Ordinance § 350.161. Count II alleges that the City has violated the First Amendment under
the prior restraint doctrine. Count III alleges that Ordinance § 350.161, in conjunction with
1
Plaintiffs have also filed five other administrative appeals in state court pertaining to
other wall mural applications plaintiffs submitted.
4
the City’s settlement agreement with Clear Channel, violates plaintiffs’ equal protection
rights.
III. Analysis
Plaintiffs contend they are likely to succeed on the merits of their First Amendment
claim in Count I because Ordinance § 350.161, in conjunction with the terms of the City’s
settlement agreement with Clear Channel, in effect gives Clear Channel unfettered access to
the wall murals in downtown Cleveland in perpetuity. Plaintiffs contend this “private deal”
between the City and Clear Channel violates their First Amendment rights of commercial
speech because they have been unable to obtain the City’s permission to erect any wall murals
in Cleveland. (Verified Complt., ¶ 37.) Plaintiffs also contend in Count I that “[t]he City has
further violated the First Amendment by engaging in content discrimination in [the City’s]
application of C.C.O. § 350.161” because Clear Channel agreed to certain content restrictions
in its settlement agreement with the City. (Verified Complt., ¶¶ 38-39; Pltf. Br. at 10.)
Plaintiffs contend they are likely to succeed on the merits of Count II, their First
Amendment claim under the doctrine of prior restraint, because the “explicit terms of the
Settlement Agreement . . . forced the City’s administrative agencies to consider wall mural
permits exclusively for Clear Channel.” (Pltf. Br. at 12.) Plaintiffs contend: “The City’s
self-securement of unfettered discretion to pick and choose whose wall murals would be
erected in downtown Cleveland violates the prior restraint doctrine secured by the First
Amendment.” (Pltf. Br. at 12.)
Finally, plaintiffs contend they are likely to succeed on the merits of their equal
protection claim because the City has claimed that plaintiffs lack proper permits for their wall
5
murals and has threatened to forcibly remove plaintiffs’ murals when, in fact, plaintiffs have
valid permits under the Ordinance § 350.161 by operation of law. (Pltf. Br. at 14-15.)
Plaintiffs contend the City’s decision to “ignore its own ordinance” and favor Clear Channel
in this manner violates their rights to equal protection.
Upon review, the Court does not find that plaintiffs have demonstrated a likelihood of
success on the merits.
First, plaintiffs have not demonstrated that the City’s alleged wrongful conduct, giving
Clear Channel a preference in obtaining permits for wall murals under Ordinance § 350.161,
violates governing constitutional standards. Plaintiffs do not identify the governing
constitutional standards applicable to their First Amendment and equal protection claims and
do not demonstrate that the City’s conduct violates those standards.2
Second, and more critically, plaintiffs take the position in this case that they, in fact,
have valid permits to erect wall murals under the challenged ordinance, but litigation
addressing this issue is presently pending in state court. The City argues that the Court
should
2
The Court notes in this regard that commercial speech is not accorded the same level
of protection as other constitutionally guaranteed expression and generally is subject to an
“intermediate” level of constitutional review. That is, where commercial speech is not
misleading or concerning unlawful activity, the government may restrict the speech if: (1) the
government has a “substantial interest” in support of its regulation; (2) the restriction on
commercial speech directly and materially advances that interest; and (3) the regulation is
narrowly drawn. Capobianco v. Summers, 377 F.3d at 562. Equal protection claims
involving commercial speech, likewise, are generally subject to mid-level review. See
Chambers v. Stengel, 256 F.3d 397, 401 (6th Cir. 2001). Although it is a government’s burden
ultimately to prove that a restriction on commercial speech is lawful, plaintiffs do not
demonstrate that the City’s alleged wall mural permit restrictions here violate applicable
constitutional standards.
6
abstain from interfering with the on-going state court proceeding, and the Court agrees.
In Younger v. Harris, 401 U.S. 37 (1971), the Supreme Court held that absent “bad
faith, harassment or any other unusual circumstance,” federal-court abstention is appropriate
where a plaintiff invokes federal jurisdiction as a basis for obtaining injunctive relief against
state court criminal proceedings. Squire v. Coughlan, 469 F.3d 551, 555 (6th Cir. 2006). The
Supreme Court later held that “[t]he policies underlying Younger are fully applicable to
noncriminal judicial proceedings when important state interests are involved.” Middlesex
County Ethics Comm’n v. Garden State Bar Ass’n, 457 U.S. 423, 432 (1982). Younger
abstention is appropriate where: (1) there are on-going state judicial proceedings; (2) the
proceedings implicate important state interests; and (3) the state proceedings afford “an
adequate opportunity” to raise constitutional challenges. Squire, 469 F.3d at 555. As to the
last requirement, abstention is appropriate “unless state law clearly bars the interposition of
the constitutional claims.” Id. at 556 (quoting Fieger v. Thomas, 74 F.3d 740, 744 (6th Cir.
1996)). Further, it is the plaintiff’s burden to show that state law barred presentation of his or
her constitutional claims. Id.
All of the elements for Younger abstention are present. First, there are clearly ongoing state judicial proceedings, specifically, the consolidated cases in Stark 1350, LLC, et al.
v. City of Cleveland, CV-759856 (Cuyahoga County Court of Common Pleas). Stark pertains
to plaintiffs’ permit applications for wall murals at 1350 West Third Street and 833 Superior
Avenue and the City’s order that plaintiffs remove the wall murals erected at those locations.
Second, the City’s assertion is persuasive that important state interests are involved, including
the City’s interest in enforcing its requirements for obtaining permits, enforcing its land use
7
codes, and ordering removal of unlawfully erected structures in the City. There is no
suggestion that the state case does not involve important interests. Finally, although
plaintiffs’ business representatives state in affidavits that “[t]he Court of Common Pleas is not
reviewing any constitutional issues,” (see Coven Aff., ¶ 26; Scantland Aff., ¶ 54), plaintiffs
have not suggested or demonstrated that state law clearly barred the imposition of their
constitutional claims. Indeed, in the administrative appeals plaintiffs filed in state court,
plaintiffs expressly state that they “reserve their right” to challenge constitutional matters.
(See Pltf. Ex. 4.) There is nothing before this Court suggesting that plaintiffs were unable to
raise their constitutional arguments in state court; therefore, the third prong for Younger
abstention is satisfied.
In that all the Younger factors are present, and there has been no showing of bad faith,
harassment, or any other unusual circumstance, federal court abstention is warranted. See Sun
Ref. & Mktg. Co. v. Brennan, 921 F.2d 635, 639 (6th Cir. 1990) (holding that “when a case is
properly within the Younger category of cases, there is no discretion on the part of the federal
court to grant injunctive relief”). Thus, plaintiffs are not likely to succeed on the merits of
their claims here.
Further, the Court finds abstention particularly appropriate here given plaintiffs’
allegation that they have valid permits under Ordinance § 350.161. If the state court
ultimately finds in plaintiffs’ favor on this point, it seems unlikely that plaintiffs’
constitutional claims, based on plaintiffs’ alleged inability to obtain permits from the City,
could proceed. In other words, plaintiffs’ constitutional claims here are not fully ripe until it
is determined whether the City is wrongfully claiming that plaintiffs do not have valid
8
permits, and this Court will not undertake to interfere with the state court’s determination of
this issue.
III. Conclusion
For all the foregoing reasons, plaintiffs have not demonstrated a likelihood of success
on the merits of their alleged claims; moreover, federal court abstention is warranted in the
case. Accordingly, Plaintiff’s Motion for Temporary Restraining Order and Request for
Hearing on Preliminary Injunction is denied.3
IT IS SO ORDERED.
/s/ Patricia A. Gaughan
PATRICIA A. GAUGHAN
United States District Judge
Dated: 9/1/11
3
Plaintiffs have filed a “Motion for Oral Argument, to Strike Extrinsic Evidence from
Defendant’s Motion to Dismiss, and to Maintain Status Quo Until Disposition.” (Doc. 7.) In
this motion, plaintiffs argue that because the City “chose to file a motion to dismiss”
combined with its opposition to the motion for a temporary restraining order, plaintiffs should
be allowed thirty days to respond to the City’s motion to dismiss. In addition, plaintiffs move
to strike “extrinsic evidence” the City attaches to its motion to dismiss and ask the Court to
hear oral argument on the merits of their constitutional claims and to enter an order
prohibiting the City from “taking any action regarding plaintiffs’ wall murals”– i.e., to
maintain the status quo – until plaintiffs are able to respond to the City’s motion to dismiss.
Plaintiffs’ motion is denied insofar as it seeks an order to “maintain the status quo.”
As determined above, a temporary restraining order is not warranted here because plaintiffs
have failed to demonstrate a likelihood of success on the merits.
Plaintiffs may respond to the City’s motion to dismiss, and briefing on the motion may
proceed according to the Local Rules. The Court will determine plaintiffs’ request to strike
evidence in connection with the motion to dismiss.
Plaintiffs’ request for oral argument is denied.
9
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?