Greenberg v. City of Sylvania et al

Filing 16

MEMORANDUM OPINION Defendants' motion to to dismiss granted in part and denied in part as stated herein. (Related Doc # 11 ); Motion for summary judgment denied without prejudice (Related Doc # 11 ). Judge David A. Katz on 8/31/12.(G,C)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
WESTERN DIVISION

DANIEL GREENBERG,
Plaintiff,

Case No. 3:12 CV 1848

-vsMEMORANDUM OPINION
CITY OF SYLVANIA, et al.,
Defendant.
KATZ, J.
Plaintiff Daniel Greenberg, resident of Sylvania, Ohio, sued the City of Sylvania, the
Mayor, Craig Stough, and the Zoning Administrator, Robert Oberly, after Plaintiff was threatened
with an “illegal sign” citation for placing a temporary political campaign sign in the front yard of
his home. The matter is currently before the Court on Defendants’ motion to dismiss for lack of
standing, or alternatively, for summary judgment. Plaintiff opposes Defendants’ motion to
dismiss, and also asks the Court to defer or deny Defendants’ summary judgment motion pursuant
to FED. R. CIV. P. 56(d) until such time as the parties complete discovery.
For the reasons stated herein, Defendants’ motion to dismiss is granted in part and denied
in part. Further, the Court will grant Plaintiff’s Rule 56(d) request and therefore deny Defendants’
summary judgment motion with leave to re-file upon completion of discovery.
I. Background
On July 6, 2012, Plaintiff placed a small political sign in the front yard of his home. The
sign advocates the re-election of President Obama and Vice President Biden in the November 6,
2012 national election.1 On July 11, Defendant Oberly, in his capacity as Zoning Administrator,
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The sign reads in pertinent part, “OBAMA BIDEN,” and also contains a stylized logo and
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went to Plaintiff’s home and personally instructed Plaintiff to remove the sign because it violated
the City’s Sign Regulations, (hereinafter, “Sign Regulations”), which prohibits exhibition of
temporary signs more then seventy days prior to, or seven days after, the event to which the sign
relates. Oberly further informed Plaintiff that if he did not remove the sign he would be subject to
criminal citation and a fine (a violation of the Sign Regulation carries penalties of up to a $1,000
fine and thirty days in jail).
Plaintiff took down the sign as a result of Oberly’s warning, but Plaintiff put the sign back
up two days later on July 13. Then, on July 16, Plaintiff found a written notice posted on his door
indicating that his property contained an “Illegal Sign.” The notice further warned that “[f]ailure
to acknowledge or correct [within forty-eight hours] will result in citation.” (Doc. 1-3).
Plaintiff subsequently filed the instant 42 U.S.C. §1983 action on July 18, 2012, seeking
damages, a temporary restraining order, preliminary and permanent injunctions, and a declaratory
judgment that the Sign Regulations’ seventy-seven day rule, as applied to Plaintiff, violates his
First Amendment right to free speech. See 44 Liquormart v. Rhode Island, 517 U.S. 484, 488 n.1
(1996) (First Amendment right to free speech incorporated against states by Fourteenth
Amendment). Plaintiff subsequently amended his complaint to add a facial challenge to the
seventy-seven day rule, as well as facial and as-applied challenges to the Sign Regulations’ permit
requirement, the discretion delegated to the City’s Board of Architectural Review in issuing

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reference to the website “BARACKOBAMA.COM.” (Pltf’s. Compl., Ex. 2, Doc. 1-2). The sign
does not specifically reference the November 6 election, but Plaintiff contends that the sign “was
intended to and reasonably understood to advocate for the re-election of the President and VicePresident at the November 6, 2012 national election.” (Pltf’s. Opp. to Defs’. Mo. Dismiss, Doc.
12 at 4).
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permits, the discretion exercised in designating seventy-seven days as a “reasonable period,” and
the limitation on the number of Campaign Political Temporary Signs that can be displayed.
Further, the amended complaint seeks a declaration that Plaintiff’s Fourteenth Amendment right to
equal protection was violated by unequal enforcement of the Sign Regulation.
In a July 23, 2012 status conference the parties agreed to maintain the status quo–Plaintiff
may keep the sign in his yard, and the City will not cite him–pending motion practice and a
hearing on Plaintiff’s preliminary injunction request. (Doc. 9). Accordingly, Defendant filed the
instant motion to dismiss for lack of standing, as well as the instant motion for summary
judgment.
II. Motion to Dismiss Standard
While Defendants style their challenge to Plaintiff’s standing as a Fed. R. Civ. P. 12(b)(6)
motion to dismiss for failure to state a claim, the Court construes Defendants’ motion as a FED. R.
CIV. P. 12(b)(1) motion to dismiss for lack of subject matter jurisdiction. See Roberts v. Hamer,
655 F.3d 578, 580-81 (6th Cir. 2011) (challenge to existence of constitutional standing is
jurisdictional question properly raised by Fed. R. Civ. P. 12(b)(1)).
Generally, a FED. R. CIV. P. 12(b)(1) motion to dismiss for lack of subject matter
jurisdiction falls into one of two categories: facial attacks and factual attacks. United States v.
Ritchie, 15 F.3d 592, 598 (6th Cir. 1994) cert. denied, 513 U.S. 868 (1994); see also Wenz v.
Rossford Ohio Transp. Improvement Dist., 392 F.Supp. 2d 931, 934 (N.D. Ohio 2005). A facial
attack challenges the sufficiency of the pleading itself, and requires the Court to take all of the
material allegations in the complaint as true and construe them in the light most favorable to the
non-moving party. Ritchie, 15 F.3d at 598 (citing Scheuer v. Rhodes, 416 U.S. 232, 235-37

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(1974)). In contrast, a factual attack challenges the factual existence of subject matter jurisdiction,
Ohio Hosp. Ass’n v. Shalala, 978 F.Supp. 735, 739 (N.D. Ohio 1997), and requires a court to
“weigh the conflicting evidence to arrive at the factual predicate that subject-matter [jurisdiction]
does or does not exist.” Gentek Bldg. Prods. v. Sherwin-Williams Co., 491 F.3d 320, 330 (6th Cir.
2007). Thus, whereas a facial attack requires the Court to accept Plaintiff’s allegations as true, a
factual attack precludes any assumption of truthfulness and allows the Court to weight the
evidence.
In the instant matter, Plaintiff contends that Defendants’ invocation of Rule
12(b)(6)–though the incorrect rule for challenging constitutional standing–evinces Defendants’
intent to bring a facial attack. See Thurman v. Pfizer, Inc., 484 F.3d 855, 859 (6th Cir. 2007)
(Rule 12(b)(6) requires courts to accept a plaintiff’s factual allegations as true). Indeed,
Defendants appear content not to dispute the facial/factual distinction, stating that “[t]his issue . . .
is esentially moot, as the factual allegations of the Plaintiff’s pleadings and representations of his
Memorandum as cited herein, are sufficient to support the arguments of the Defendants.” (Def.’s
Reply in support of Mo. Dismiss, Doc. 15 at 4) (hereinafter, “Def’s. Reply”); cf. In re CP Ships
Ltd. Secs. Litig., 578 F.3d 1306, 1312-1313 (11th Cir. 2009) (finding tantamount admission of
facial challenge to subject matter jurisdiction). Despite this, the Court will examine the instant
motion as a factual challenge to subject matter jurisdiction since, as discussed below, a factual
standard enables consideration of affidavits and declarations that both parties have filed and
argued in their briefs.
III. Analysis of Plaintiff’s Standing

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To demonstrate standing under Article III of the Constitution, “a plaintiff must establish
three elements: “(1) an injury in fact that is concrete and particularized; (2) a connection between
the injury and the conduct at issue, meaning that the injury must be fairly traceable to the
defendant’s action; and (3) a likelihood that the injury would be redressed by a favorable decision
of the court.” H.D.V.–Greektown, LLC v. City of Detroit, 568 F.3d 609, 616 (6th Cir. 2009)
(citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992)). At issue in the instant matter is
whether Plaintiff can demonstrate a concrete injury. The Court will therefore examine Plaintiff’s
alleged injuries, bearing in mind that Plaintiff must demonstrate injury as to each provision of the
Sign Regulations that he is challenging. Midwest Media Prop., LLC v. Symmes Twp., 503 F.3d
456, 464 (6th Cir. 2007); see also Tini Bikinis-Saginaw, LLC v. Saginaw Charter Twp., 836 F.
Supp. 2d 504, 522-23 (6th Cir. 2011) (quoting id.); Prime Media, Inc. v. City of Brentwood, 485
F.3d 343, 351-53 (6th Cir. 2007) (no standing to challenge provisions of ordinance by which
plaintiff was not injured, even though plaintiff established injury under other provisions).
Before determining whether Plaintiff has established an injury, it is necessary to articulate
the relevant provisions of the Sign Regulations that give rise to the matter. Chapter 1166 of the
City of Sylvania’s Planning and Zoning Code enumerates the City’s “Sign Regulations.” The
parties agree that the yard sign at issue is a “Temporary Sign” as defined by Section 1166.04(pp):
(pp) Temporary Sign. Any sign not intended for permanent installation, such as
promotional and street banners and signs at construction sites. They may also be
incidental or miscellaneous in nature, such as political campaign temporary signs and
real estate signs.2
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Additionally, Plaintiff’s yard sign meets Section 1166.04(hh)’s definition of a “Political Campaign
Temporary Sign”: “Freestanding temporary signs advocating or opposing a candidate for public
office or a position on an issue to be determined at an election.” It is not necessary to articulate a
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Generally, per Section 1166.07(h), all Temporary Signs require a permit unless specifically
identified by another section as being allowed without a permit:
1166.07 STANDARDS FOR PERMITTED SIGNS
(h) Teorary Signs.
(1) General Requirements.
A. Permit Required. Unless specifically
identified as not requiring a permit in
Section 1166.03, all temporary signs
shall require a sign permit.
Accordingly, Section 1166.03(b) enumerates those Temporary Signs that are allowed without a
permit, with Section 1166.03(b)(14) containing the seventy-seven day temporal allowance at the
heart of the instant matter. Specifically, Section 1166.03(b)(14) allows certain event-related
Temporary Signs to be displayed without a permit if done so within a “reasonable period,” which
is defined as seventy days prior to the event, or seven days after the event:
1166.03 PERMIT REQUIRED
(a) All signs and temporary signs erected, placed, constructed or
modified within the City, except those specifically excluded in this
chapter, shall secure a permit pursuant to the provisions of this chapter
....
(b) The following specific types of signs are allowed in all areas of the
City and do not require a permit:
(14) Temporary Signs that conform to the requirements
of Section 1166.07(h) and are less than or equal to nine

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(...continued)
relationship between the two definitions at this stage of the litigation, as the sections of the Sign
Regulations relevant to a determination of Plaintiff’s standing reference “Temporary Signs,” not
“Political Campaign Temporary Signs.”
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(9) square feet in size may be displayed for a
reasonable period. A reasonable period of display
for Temporary Signs which refer to or are related to
a specific event or occurrence shall not exceed
seventy (70) days prior to and seven (7) days after
the event or occurrence to which the Temporary
Sign pertains. This allowance shall not apply to
banners, promotional banners, construction signs,
future development signs, portable commercial signs,
other Temporary Signs with a commercial message and
other Temporary Signs larger than nine (9) square feet
in size . . . .
(emphasis added). Likewise, by operation of the previously described Sign Regulations sections,
(§ 1166.07(h)(1)(A) and § 1166.03(a)), one must obtain a permit to display an event-related
Temporary Sign outside the seventy-seven day allowance.
To obtain a permit, one follows the procedures outlined in Section 1166.15(a), which
require, inter alia, a fifteen dollar fee and a written application. Further, as part of the permitting
process, Section 1166.15(a) details a system by which the City’s Board of Architectural Review
determines the appropriateness of the request and decides whether to direct the Zoning Office to
issue a permit. See generally Sign Regulations § 1166(a)(2)(D).
With these provisions in mind, the Court turns to an assessment of Plaintiff’s alleged
injuries. First, with regard to Plaintiff’s challenges to the seventy-seven day allowance (§
1166.03(b)(14)), the permit requirement for signs outside the seventy-seven day allowance (§
1166.07(h)(1)(A); § 1166.03(a)), the discretion exercised in determining seventy-seven days to be
a reasonable period (§ 1166.03(a)), and the permitting discretion delegated to the City’s Board of
Architectural Review (§ 1166(a)(2)(D)), the Court agrees that Plaintiff was injured by Defendants’
oral and written warnings that threatened citation. While Defendants argue that Plaintiff was not
injured because he was not actually cited, it is well settled that a credible threat of prosecution,
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coupled with an intention to engage in conduct giving rise thereto, constitutes a concrete injury
sufficient to confer standing. Steffel v. Thompson, 415 U.S. 452, 458-59 (1974); Babbitt v. United
Farm Workers Nat’l Union, 442 U.S. 289, 298 (1979); Berry v. Schmidt, ___ F.3d ___, 2012 WL
3047238, at *2 (6th Cir. July 27, 2012); McGlone v. Bell, 681 F.3d 718 (6th Cir. 2012) (quoting
Steffel, 415 U.S. at 459) (“Plaintiff is not required to ‘first expose himself to actual arrest or
prosecution to be entitled to challenge a statute that he claims deters the exercise of his
constitutional rights.’”
Defendants unpersuasively attempt to argue that the threat of prosecution was not credible
because it was possible that Plaintiff could have been charged civilly instead of criminally. See
Sylvania Codified Ordinances § 163.01 et. seq., Doc. 15-1 (charge of civil offense precludes arrest
and limits fines for initial offenses to seventy-five dollars, subject to a fifty percent reduction if
corrected within ten days). Defendants claim that Plaintiff knew of the separate civil offense
provision because Plaintiff attached to his complaint the entire Sign Regulations Chapter, which
includes an “Enforcement and Penalties” provision. § 1166.15(e). Defendants argue that
knowledge of the Enforcement and Penalties provision in-turn evinces knowledge that Plaintiff
could have been charged civilly instead of criminally, and that such knowledge renders Plaintiff’s
fears of criminal prosecution merely “imaginary or speculative.” See Younger v. Harris, 401 U.S.
37, 42 (1971) (“persons having no fears of state prosecution except those that are imaginary or
speculative, are not to be accepted as appropriate plaintiffs.”). But even accepting Defendants’
assertion that Plaintiff knew of the possibility for a civil citation,3 the Court does not see how such
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The Court is unable to gauge the plausibility of Defendants’ contention that Plaintiff knew he may
only be subject to civil citation. According to Defendants, the basis of Plaintiff’s putative
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knowledge negates the credible threat of criminal prosecution where, as here, the City’s Zoning
Administrator personally knocked on Plaintiff’s door and told Plaintiff he would be subject to
criminal citation if he failed to comply with the Sign Regulations. Plaintiff’s complaint
specifically alleges that Defendant Zoning Administrator Oberly so warned Plaintiff, (Pltf’s Amd.
Compl., Doc. 10 at ¶9), as does Plaintiff’s declaration. (Pltf’s. Decl., Doc. 8 at ¶3); cf. Younger,
401 U.S. at 42 (threat of prosecution was “imaginary or speculative” where plaintiffs “[did] not
claim that they [had] ever been threatened with prosecution, that a prosecution [was] likely, or
even that a prosecution [was] remotely possible.”). Defendants have offered nothing to negate
Plaintiff’s allegations and evidence, and the Court therefore finds that the threat of prosecution
was sufficiently credible to confer standing.
With regard to Plaintiff’s challenge to the permitting discretion delegated to the City’s
Board of Architectural Review (§ 1166.15(a)(2)(D))–a challenge for which Plaintiff already has
standing based on a credible threat of prosecution–the Court agrees that Plaintiff was injured by a
combination of the permitting requirement’s prior restraint and the discretion delegated to the
Board. As explained by City of Lakewood v. Plain Dealer Publishing Co., “when a licensing
statute allegedly vests unbridled discretion in a government official over whether to permit or
deny expressive activity, one who is subject to the law may challenge it facially without the
necessity of first applying for, and being denied, a license.” 486 U.S. 750, 755 (1988); see also G

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(...continued)
knowledge derives from Sign Regulations Section 1166.15(e), which merely states: “Whoever
violates any provision of this chapter shall be subject to the penalties provided in Section
1103.99.” Section 1103.99 is an entirely separate Chapter of the City’s Planning and Zoning
Code, which Plaintiff did not attach to his complaint, and which Defendants have not included in
the record. Thus, it is unclear the extent to which Plaintiff may have known that he may be
subject to civil citation.
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& V Lounge v. Michigan Liquor Control Comm’n, 23 F.3d 1071, 1075 (E.D. Mich. 1994) (citing
id.). In the instant matter, the parties do not offer extensive case law analysis regarding when
discretion is so “unbridled” as to constitute injury, but the Court is satisfied at this juncture that
Plaintiff has been injured. Specifically, the Court notes that the Board’s discretion includes
consideration of whether the sign will “promote, preserve, and enhance the architectural character
of the . . . premises upon which it will be erected, as well as the community where the premises is
located.” § 1166.15(a)(2)(D)(1)(a). The Board’s discretion also includes a determination of
whether “[t]he sign plan aesthetic and economic contextual factors of the proposed sign . . .
conform to design review standards and guidelines adopted in Sylvania regarding [several
enumerated factors.]” Id. at (D)(1)(b). As such, the Court finds that Plaintiff has demonstrated an
additional, independent injury sufficient to sustain a facial challenge to the Architectural Review
Board’s discretion.
The Court is not persuaded by Defendants’ contention that, notwithstanding any of the
above-described injuries, Plaintiff does not have standing to sue until he exhausts administrative
remedies. Defendants rely on analysis from the Sixth Circuit’s opinion in Tini Bikinis-Saginaw,
LLC v. Saginaw Charter Twp., supra, as well as on the Tini Bikinis court’s discussion of
Williamson County Reg’l Planning Comm’n v. Hamilton Bank of Johnson City, 473 U.S. 172
(1985). Specifically, Defendants cite the Tini Bikinis court’s prerequisite of administrative finality
in certain licensing statute challenges, 836 F. Supp. 2d at 518-19, to argue that Plaintiff has not
been injured until such time as he applies for and is denied a license. Defendants’ analysis is
inapposite, however, as the portion of Tini Bikinis upon which Defendants rely deals with

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ripeness, not standing. See id. at 515-19, 522-24 (conducting independent analyses of ripeness
and standing).4
For the foregoing reasons, Plaintiff has standing to challenge the Sign Regulations’
seventy-seven day allowance (§ 1166.03(b)(14)), the permit requirement for signs displayed
outside the seventy-seven day allowance (§ 1166.07(h)(1)(A); § 1166.03(a)), the discretion
exercised in determining seventy-seven days to be a reasonable period (§ 1166.03(a)), and the
permitting discretion delegated to the City’s Board of Architectural Review (§ 1166(a)(2)(D)).
There remains an issue, however, as to whether Plaintiff has standing to challenge the Sign
Regulations’ limit on the number of Temporary Signs that may be displayed. In the instant matter,
the Court finds that Plaintiff does not have standing for this claim. Plaintiff has not alleged any
facts or introduced any evidence explaining how the limit on the number of signs affects him, let
alone injures him. See Prime Media, 485 F.3d at 352-53 (even where plaintiff demonstrated
standing to challenge certain statutory provisions, plaintiff lacked standing to challenge laundry
list of other provisions that had nothing to do with plaintiff’s circumstances). Therefore,
Plaintiff’s challenge against the limit on the number of Temporary Signs that may be displayed is
dismissed.
IV. Defendants’ Summary Judgement Motion
Plaintiff moves the Court to defer or deny Defendants’ summary judgment motion
pursuant to FED. R. CIV. P. 56(d) until such time as the parties complete discovery. The Court

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To the extent Defendants are challenging ripeness, the Court is satisfied at this juncture with the
ripeness of Plaintiff’s claims.
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accepts the declaration of Plaintiff’s counsel as to the need for discovery, (Doc. 13), and therefore
denies Defendants’ summary judgment motion with leave to re-file upon completion of discovery.
V. Conclusion
For the reasons stated herein, Defendants’ motion to dismiss is granted in part and denied
in part. (Doc. 11). Further, pursuant to FED. R. CIV. P. 56(d), Defendants’ summary judgment
motion is denied with leave to re-file upon completion of discovery. (Doc. 11).
IT IS SO ORDERED.
s/ David A. Katz
DAVID A. KATZ
U. S. DISTRICT JUDGE

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