State v. Spano , 197 Ohio App. 3d 135 ( 2011 )

[Cite as State v. Spano, 197 Ohio App.3d 135, 2011-Ohio-6026.]
STATE OF OHIO, MAHONING COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
THE STATE OF OHIO, ) CASE NO. 10 MA 3
)
APPELLEE, )
)
v. ) OPINION
)
SPANO, )
)
APPELLANT. )
CHARACTER OF PROCEEDINGS: Criminal Appeal from the County Court No.
5, of Mahoning County, Ohio
Case No. 08 CRB 627
JUDGMENT: Affirmed.
APPEARANCES:
Paul J. Gains, Mahoning County Prosecuting Attorney, and Karen M. Gaglione,
Assistant Prosecuting Attorney, for appellee.
Martin Yavorcik, for appellant.
JUDGES:
Hon. Cheryl L. Waite
Hon. Joseph J. Vukovich
Hon. Mary DeGenaro
Dated: November 18, 2011
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WAITE, Presiding Judge.
{¶ 1} Appellant, Armando Spano, pleaded guilty to, and was convicted of, one
count of violating Canfield Township’s zoning ordinances, and he was fined $25 for
failure to obtain a special-event zoning permit. Appellant operates a car dealership in
Canfield, and the violations arose from signs he put up advertising a sale at the
dealership. Canfield’s zoning regulations require a person to obtain a permit before
setting up a special-event advertising device. Appellant contends that the zoning
regulation is unconstitutional because it engages in prior restraint and gives unfettered
discretion to the zoning inspector to issue a special-event permit. Appellant has waived
any error on appeal by pleading guilty to the criminal offense. In addition, the zoning
regulation can be interpreted so that the zoning inspector does not have unfettered
discretion but, rather, has only the power to determine whether the permit application
satisfies the factors set forth in the zoning resolutions. The line of cases relied on by
appellant dealing with prior restraint of protected speech does not involve content-
neutral zoning regulations, and therefore, those cases are inapposite. Appellant’s
assignment of error is without merit, and the judgment of the trial court is affirmed.
{¶ 2} Appellant owns and operates Armando’s, Inc., a car dealership located in
Canfield Township, Mahoning County, Ohio. On December 29, 2008, appellant was
cited for violating a township zoning regulation pursuant to R.C. 519.23. He was
alleged to have violated Canfield Township Zoning Resolution (“Zoning Res.”) 605.1.7,
which requires a permit before installing a special-event advertising device. He was
also cited for violating Zoning Res. 702, which describes the procedure and fees for
obtaining a zoning permit. On February 17, 2009, appellant, through his counsel, filed a
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motion to strike Zoning Res. 605.1.7 as being in violation of the First Amendment to the
United States Constitution. The court held a hearing on the motion on June 4, 2009.
On August 4, 2009, the court overruled the motion to strike.
{¶ 3} On November 20, 2009, appellant entered a plea of guilty to one count of
violating R.C. 519.23. Appellant was represented by counsel during this plea. The
court accepted the plea and imposed a fine of $25. Appellant filed this appeal on
December 18, 2009.
Assignment of Error
{¶ 4} “The zoning laws under which the appellant was charged are
unconstitutional and thus facially invalid.”
{¶ 5} Appellant argues that the Canfield Township zoning inspector has
unfettered discretion in issuing a special-event advertising permit. Appellant contends
that Zoning Res. 605.1.7 is facially unconstitutional in that it creates a prior restraint on
his First Amendment right to freedom of speech based on the unbridled discretion of a
government official. Appellant now contends that the fee charged for the permit also
renders the zoning resolutions unconstitutional.
{¶ 6} Legislative enactments enjoy a presumption of constitutionality. State v.
Dorso (1983), 4 Ohio St.3d 60, 61, 446 N.E.2d 449. Courts must apply “all
presumptions and pertinent rules of construction so as to uphold, if at all possible, a
statute or ordinance assailed as unconstitutional.” Id. A court should not declare a
legislative enactment unconstitutional if there is a rational interpretation that would
preserve its constitutionality. State v. Sinito (1975), 43 Ohio St.2d 98, 101, 330 N.E.2d
896. Zoning ordinances are presumed constitutional unless a court determines that the
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ordinance is “clearly arbitrary and unreasonable and without substantial relation to the
public health, safety, morals, or general welfare of the community.” Goldberg Cos., Inc.
v. Richmond Hts. City Council (1998), 81 Ohio St.3d 207, 214, 690 N.E.2d 510.
{¶ 7} Signs are a form of speech protected by the First Amendment to the
United States Constitution. Ladue v. Gilleo (1994), 512 U.S. 43, 48, 114 S.Ct. 2038,
129 L.Ed.2d 36. The United States Supreme Court, however, has noted that because
there are certain problems associated with signs, such as causing obstructed views or
distracting motorists, a political subdivision may exercise its police powers to regulate
the physical characteristics of signs. Id. When a sign ordinance is challenged on a First
Amendment basis, the first line of inquiry is whether the regulation is content-based, or
content-neutral. Davis v. Green (1995), 106 Ohio App.3d 223, 227, 665 N.E.2d 753. If
a regulation is content-based, then strict scrutiny is applied to determine the
constitutionality of the ordinance. Painesville Bldg. Dept. v. Dworken & Bernstein Co.,
L.P.A. (2000), 89 Ohio St.3d 564, 567, 733 N.E.2d 1152. A content-neutral regulation,
however, may impose reasonable restrictions on the time, place, or manner of speech
as long as the restrictions are justified without reference to the content of the speech,
are narrowly tailored to serve a significant governmental interest, and leave open
alternative channels for communication of the information. Ward v. Rock Against
Racism (1989), 491 U.S. 781, 791, 109 S.Ct. 2746, 105 L.Ed.2d 661.
{¶ 8} A township's authority to adopt and enforce zoning resolutions is directly
granted to it by the General Assembly through R.C. Chapter 519. Natl. Lime & Stone
Co. v. Blanchard Twp., 3d Dist. Nos. 6-04-04 and 6-04-05, 2005-Ohio-5758, 2005 WL
2840493, ¶ 14. R.C. 519.23 criminalizes the use of a building or land in violation of a
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township-zoning ordinance. The maximum possible penalty under R.C. 519.23 is $500.
See R.C. 519.99. The maximum penalty under the Canfield zoning regulations is a fine
of $100 per violation in any 24-hour period. In this appeal, appellant is challenging his
conviction on one count of a zoning violation under R.C. 519.23. Appellant entered a
plea of guilty to this crime.
{¶ 9} Because a violation of Zoning Res. 605.1.7 constitutes a crime pursuant to
R.C. 519.23 and appellant pleaded guilty to the crime, the rules governing guilty pleas
apply to this case. A plea of guilty waives all appealable errors at trial unrelated to the
entry of the plea. State v. Kelley (1991), 57 Ohio St.3d 127, 566 N.E.2d 658, paragraph
two of the syllabus. “By entering a plea of guilty, the accused is not simply stating that
he did the discrete acts described in the indictment; he is admitting guilt of a substantive
crime.” United States v. Broce (1989), 488 U.S. 563, 570, 109 S.Ct. 757, 102 L.Ed.2d
927. The record here clearly reflects that appellant pleaded guilty to the crime and did
not preserve any right to appeal an alleged First Amendment violation.
{¶ 10} Assuming arguendo that appellant had not waived the error he now raises,
his argument is still without merit. First, there is no basis to his allegation that the law is
facially unconstitutional. A zoning law may be challenged “on its face” or on the
particular set of facts to which the law has been applied. Harold v. Collier, 107 Ohio
St.3d 44, 2005-Ohio-5334, 836 N.E.2d 1165, ¶ 37, citing Belden v. Union Cent. Life Ins.
Co. (1944), 143 Ohio St. 329, 28 O.O. 295, 55 N.E.2d 629, paragraph four of the
syllabus. When a statute is challenged on its face, the challenger must demonstrate
that no set of circumstances exists under which the statute would be valid. Id., citing
United States v. Salerno (1987), 481 U.S. 739, 745, 107 S.Ct. 2095, 95 L.Ed.2d 697.
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The fact that the statute could operate unconstitutionally under some given set of facts
or circumstances is insufficient to render it wholly invalid. Id. “Conversely, when a
statute is challenged as applied, the challenger must establish by clear and convincing
evidence an existing set of facts that renders the statute invalid when applied to those
facts.” Smith v. Jones, 175 Ohio App.3d 705, 2007-Ohio-6708, 889 N.E.2d 141, ¶ 14,
citing Harold, 107 Ohio St.3d 44, 2005-Ohio-5334, 836 N.E.2d 1165, at ¶ 38.
{¶ 11} Appellant’s facial challenge is based on two words that appear in the body
of Zoning Res. 605.1.7: “may” and “opinion”:
{¶ 12} “Special event advertising devices may be considered by the Zoning
Inspector. If, in the Zoning Inspector’s opinion, such advertising devices conform to the
regulations found elsewhere in these Zoning Resolutions, the Zoning Inspector may
issue a special event permit for a period of thirty (30) days prior to an event and
conditioned that such advertising devices shall be removed within seven (7) days after
the closing of such event. No renewal or extension of the permit shall be allowed. Such
advertising devices shall not exceed thirty-two (32) square feet in area, shall be located
no closer than five (5) feet to a property or street-line and shall not be permitted in the
public right-of-way.” (Emphasis added.)
{¶ 13} Appellant contends that Zoning Res. 605.1.7 is facially invalid based on
the unfettered discretion given to the zoning inspector to grant or deny the permit
request. If the request for a permit “may be considered by the Zoning Inspector,” the
implication is that it also may not be considered. Appellant contends that the word
“may” gives no guidance to the zoning inspector, allowing for arbitrary enforcement.
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Appellant also objects to the phrase “in the Zoning Inspector’s opinion,” interpreting it to
mean that obtaining a permit is left solely to the whim of the zoning inspector.
{¶ 14} We do not interpret the zoning resolution in the manner that appellant
suggests. The word “may” appearing in a statute or zoning regulation does not
necessarily imply any discretion, much less unfettered discretion as argued by
appellant. As stated in Black’s Law Dictionary (6th Ed.1990) 979, “courts not
infrequently construe ‘may’ as ‘shall’ or ‘must’ to the end that justice may not be the
slave of grammar.” See, e.g., Gallman v. Mercer Cty. Bd. of Commrs. (1953), 159 Ohio
St. 253, 257, 112 N.E.2d 38. Similarly, the fact that the zoning inspector has to render
an “opinion” as to whether the permit request may be granted does not imply unfettered
discretion. The inspector is required to evaluate whether the proposed sign satisfies the
requirements of the zoning resolutions and thus does need to form an opinion as to
whether or not to grant the permit. Even performing a ministerial act often requires
some amount of decision making, but that does not convert the decision into unfettered
discretion.
{¶ 15} A reading of Zoning Res. Section 605 in its entirety leads to the conclusion
that 605.1.7 is included to allow the zoning inspector authority to issue permits for
special-event advertising devices, since that authority is not necessarily clear from the
remaining zoning resolutions. The terms for obtaining the permit are laid out in the
resolution: the special-event signage must be no more than 32 square feet in area, it
must not be in a public right-of-way, and it must not be closer than five feet from a
property or street line. Zoning Res. 605.1.8 describes other specifications dealing
mostly with safety concerns that also factor into whether the permit will be granted. For
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example, signs with flashing lights or moving parts are not permitted, presumably
because flashing lights and moving parts might distract motorists. Zoning Res. Section
702 also sets out the fee that must be paid to obtain the permit: the amount of $65 for
each side of the sign.
{¶ 16} Zoning Res. 605.1.7 states that the zoning inspector must determine
whether the special advertising device conforms “to the regulations found elsewhere in
these Zoning Resolutions.” Hence, the zoning inspector must decide whether the
proposed advertising device is permissible based on the factors listed in the zoning
regulations, leaving very little, if any, discretion in granting or denying the permit
request. Because there is a reasonable and constitutionally valid approach to
interpreting and applying the zoning resolution, appellant has failed to establish that the
resolution is invalid on its face.
{¶ 17} Appellant further argues that the zoning regulation is a type of prior
restraint of protected speech. A prior restraint is present “when speech is conditioned
on the prior approval of public officials.” Cincinnati v. Jenkins (2001), 146 Ohio App.3d
27, 30, 764 N.E.2d 1088. Not all incidental government regulation of speech, though, is
subject to a prior-restraint analysis. The United States Supreme Court has not used the
prior-restraint doctrine to invalidate general zoning regulations controlling the size or
location of billboards and advertising signs. Prior restraint relates to attempts at
government censorship, not government restrictions on the placement of advertisement.
Hill v. Colorado (2000), 530 U.S. 703, 734, 120 S.Ct. 2480, 147 L.Ed.2d 597. Prior-
restraint issues arise in cases involving the control of adult entertainment and adult
bookstores, the prevention of protests at abortion clinics, or the prohibition by the
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government of the publication of sensitive government documents. Littleton, Colo. v.
Z.J. Gifts D-4, L.L.C. (2004), 541 U.S. 774, 124 S.Ct. 2219, 159 L.Ed.2d 84; Schenck v.
Pro-Choice Network Of W. New York (1997), 519 U.S. 357, 117 S.Ct. 855, 137 L.Ed.2d
1; New York Times Co. v. U.S. (1971), 403 U.S. 713, 91 S.Ct. 2140, 29 L.Ed.2d 822.
The issues in these cases are vastly different from those in the instant appeal. There is
no government censorship apparent in the application of the Canfield zoning
resolutions.
{¶ 18} Canfield Township’s zoning resolutions do not prevent appellant from
advertising or selling cars at his dealership. The zoning regulations merely restrict the
size and placement of special-event signs within the township. Whether zoning
regulations pertaining to billboards and signs satisfy the strictures of the First
Amendment requires only a review as to whether the content-neutral regulation
provides reasonable time, place, and manner restrictions. The rules for time, place, and
manner restrictions are set forth in United States v. O'Brien (1968), 391 U.S. 367, 377,
88 S.Ct. 1673, 20 L.Ed.2d 672. The O’Brien test provides that a government regulation
is sufficiently justified if (1) it is within the power of the governmental entity, (2) it furthers
an important or substantial governmental interest, (3) the governmental interest is
unrelated to the suppression of free expression, and (4) the incidental restriction on First
Amendment freedoms is no greater than is essential to the furtherance of that interest.
Id. at 377.
{¶ 19} The zoning resolution in this case satisfies the O’Brien test. Canfield
Township has the authority to enact zoning regulations. The government has an
interest in controlling the size and placement of special-event signs for both safety and
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aesthetics. The zoning resolution is content-neutral and is not directed at suppressing
any particular type of speech. The zoning resolution restricts signs only from being in a
public right-of-way, from being larger than 32 square feet, and from being closer than
five feet from a property or street line, along with a few other safety restrictions set forth
in Zoning Res. 605.1.8.
{¶ 20} As far as appellant’s argument about the fee charged for obtaining a
special-event permit, there are no indicia that any discretion is involved whatsoever.
The fee for the permit is $65. If the sign has more than one side, there is an additional
$65 per side. There is no ambiguity about the fee, and appellant’s attempt to read
ambiguity or discretion into the zoning resolution is unpersuasive.
{¶ 21} In conclusion, we hold that appellant has waived the alleged errors raised
on appeal due to his guilty plea to the zoning violations. Even if he had not waived his
arguments, his assignment of error is not persuasive. We agree that appellant’s
advertising sign is a form of speech protected by the First Amendment. The fact that
appellant needs to obtain a zoning permit to display his sign, though, is not a First
Amendment violation. Appellant’s facial challenge of Zoning Res. 605.1.7 fails because
there is a constitutionally valid method of interpreting and applying the zoning
resolution. A reasonable reading of the resolution indicates that the zoning inspector
does not have unfettered discretion in deciding whether to grant a special-event permit.
The zoning inspector’s function is very limited. He is required to compare the permit
application to the factors in the zoning resolution and to grant or deny the permit request
accordingly. Appellant’s argument regarding prior restraint is misplaced, and the zoning
resolutions need only meet the O’Brien test for regarding reasonable time, place, and
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manner restrictions on protected speech. Zoning Res. 605.1.7 meets the O’Brien
standard. We overrule appellant’s assignment of error, and the judgment of the trial
court is affirmed.
Judgment affirmed.
VUKOVICH and DEGENARO, JJ., concur.