Court News Ohio
Court News Ohio
Court News Ohio

Wednesday, June 16, 2021

Lamar Advantage GP Co. LLC et al. v. City of Cincinnati et al., Case No. 2020-0931
First District Court of Appeals (Hamilton County)

State of Ohio v. Katherine Wilson, Case No. 2020-0721
First District Court of Appeals (Hamilton County)

Cletus Snay et al. v. Matthew Burr et al., Case No. 2020-1057
Sixth District Court of Appeals (Huron County)

Mahoning County Bar Association v. Joseph R. Macejko, Case No. 2020-1513
Mahoning County

Does Cincinnati Billboard Tax Violate Free Speech Rights?

Lamar Advantage GP Co. LLC et al. v. City of Cincinnati et al., Case No. 2020-0931
First District Court of Appeals (Hamilton County)

ISSUE: Does a city excise tax on billboard operators based on the sales generated from the leasing of the billboards violate the operators’ free speech rights under the First Amendment to the U.S. Constitution?

Two companies own nearly all the commercially available billboards in Cincinnati. Both are challenging a 2018 excise tax imposed by Cincinnati City Council, arguing it is an unconstitutional infringement on free speech because they are part of the press. The case has drawn statewide and national attention. Amicus curiae briefs supporting the billboard companies were submitted jointly by several major Ohio media organizations and newspaper owners, as well as a brief from the national group representing outdoor advertisers.

The billboard companies maintain that because the tax implicates the First Amendment, the law is subject to “strict scrutiny,” and the city isn’t able to prove the required compelling government interest needed to meet the legal standard. The city counters the tax implicates only the commercial aspects of billboards and only must meet the “rational basis scrutiny” standard, which it did because the tax doesn’t vary based on the messages presented on the signs.

Cincinnati regulates outdoor advertising in three ways. It has a zoning code regulating the placement and sizes of signs. It instituted a cap on the number of commercial billboards that can be erected in the city and charges a permit fee to the owners. The number of signs is capped at the number of billboards in use in 1989. A billboard operator is allowed to remove a sign and replace it with another billboard in a different location, but the total number can’t increase. This has led to two companies, Lamar Advertising of Cincinnati and Norton Outdoor Advertising, owning all but a few billboards available to advertisers to lease.

In June 2018, the city council enacted a new excise tax on billboards to support a human services fund to be operated by United Way. The tax didn’t apply to signs on a company’s own premises, billboards on government property, or small signs. The tax was to be paid by “advertising hosts,” such as Lamar and Norton, which had permits to operate the billboards. The tax is the greater of 7% of gross receipts generated by the operation of a billboard or a flat amount calculated by the billboard’s signage area.

One month after the passage of the tax, Lamar and Norton filed a lawsuit in Hamilton County Common Pleas Court to declare the tax an unconstitutional violation of their free speech rights. Relying primarily on the U.S. Supreme Court’s 1983 Minneapolis Star & Tribune v. Minnesota Commr. of Revenue decision, the trial court struck down the tax and blocked the city from imposing it.

The city appealed the decision to the First District Court of Appeals, which reversed the trial court. The First District also ruled on a second ordinance that the billboard companies called a “gag provision,” because it prevented the billboard owners from listing the tax as a separate cost to the advertisers than the other charges being billed. The First District found the provision constitutional.

The billboard companies appealed the decision to the Ohio Supreme Court, which agreed to hear the case. The city has since repealed the “gag provision” and clarified that the tax only applies to billboards on which space is sold or rented to third parties and not to space that isn’t for rent or sale. Because of the COVID-19 health crisis, the Supreme Court will hear arguments in the case by videoconference, which will be livestreamed.

Communicators Can’t Be Singled Out for Taxation, Billboard Operators Argue
Lamar and Norton submitted separate merit briefs in the case, but make similar arguments.

The companies cite the Ohio Supreme Court’s 1982 Norton Outdoor Advertising v. Arlington Heights decision in which the Court found billboards have the same First Amendment rights as any other media or means of speech, and that the government can’t control the “communicative aspects” of billboards. The billboard owners note they provide for both commercial messages by the advertisers that pay to use the signs and they often offer space for free to charitable organizations to provide noncommercial public service announcements. The billboards are used for political speech and provide a wide variety of important messages to the traveling public, which is why the U.S. Supreme Court has considered billboards to be “part of the press,” they note.

While the companies cite several U.S. Supreme Court decisions striking down taxes and regulations on media, they note the Minneapolis Star ruling tracks closely to their circumstances in Cincinnati. Minnesota lawmakers sought to impose a tax on the sale of the ink and paper used to publish newspapers, instead of a tax directly on the sale of newspapers, in hopes of avoiding a direct tax on the press. The tax applied only to sales in excess of $100,000 so that only the 11 largest newspapers in the state had to pay it. The Supreme Court struck down the tax because it singled out the press and targeted a small group of speakers.

The billboard companies acknowledge they are subject to the same general taxes as any other business in Cincinnati, but they argue this tax violates the principles set out in Minneapolis Star because it only applies to a small set of speakers and targets the press. The companies estimate that to pay the tax and remain profitable they would have to take down 70 to 80 billboards out of the estimated 800 billboards permitted in the city.

The billboard owners argue the city is using the funds for the general operation of the city or to support one city interest — human services. Because the owners already pay a permit fee, which the city uses to regulate outdoor advertising, the tax is not related in any way to billboards. Without a compelling government interest to tax the billboards, the tax is unconstitutional, they conclude.

Tax Unrelated to Speech, City Maintains
The city notes the billboard tax is among many license and franchise taxes levied by the city, which include admission taxes to events, a hotel tax, a short-term rental tax, and a commercial waste-hauler tax. The city maintains the U.S. and Ohio Supreme Courts have established the “law of billboards,” noting that not all members of the media are treated equally for regulatory and taxation purposes. The city agrees that billboards can’t be taxed for their “communicative” aspects but can be taxed and regulated for their “noncommunicative” features. The tax is “content neutral” and doesn’t vary depending on whether the messages are commercial, noncommercial, or political, the city maintains, and it doesn’t relate to the messages advertisers communicate by renting the billboards.

The city argues the tax is on the economic activity of the billboard owners, which do little if anything to shape the messages advertisers place on the signs. The city notes its tax was based on a recent tax imposed by the city of Baltimore, Maryland, and a Maryland appellate court recently upheld the tax after it was challenged, based on the claim that it infringed on the billboard owners’ free speech rights. The city notes the First District found the decision persuasive.

The city also maintains it only needs a rational basis for imposing the tax for it to pass constitutional muster, and it does so because it raises revenue from billboard operators that have exclusive privileges to advertise in the city. The city maintains the billboard owners haven’t demonstrated that the tax would threaten to suppress expression of particular ideas or viewpoints, so the tax isn’t subject to the strict scrutiny imposed on regulations of speech or the press.

Friend-of-the-Court Briefs Submitted
An amicus curiae brief supporting Lamar’s and Norton’s position has been submitted jointly by Block Communications, E.W. Scripps Company, Ohio Association of Broadcasters, Ohio News Media Association, and Outdoor Advertising Association of Ohio. The Outdoor Advertising Association of America also filed an amicus brief supporting the billboard owners.

Dan Trevas

Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.

Representing Lamar Advantage GP Company LLC: R. Guy Taft, 513.621.2120

Representing Norton Outdoor Advertising Inc.: Michael Galasso, 513.721.3330

Representing the City of Cincinnati: Marion Haynes, 513.352.4894

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Must Vehicle Move to Convict Driver’s Seat Occupant of Operating Under Suspension?

State of Ohio v. Katherine Wilson, Case No. 2020-0721
First District Court of Appeals (Hamilton County)

ISSUE: To prove a violation of driving with a suspension for operating a vehicle while intoxicated must the prosecution prove the defendant actually moved the vehicle?

In February 2019, four young people partying at a home in Cincinnati were asked to leave in the early morning hours. At around 5:30 a.m., the four, including two juveniles, climbed into a parked car across the street from the home. Katherine Wilson sat in the driver’s seat and turned on the ignition and the car’s heat to keep the occupants warm. Shortly after they got into the car, a neighbor called 911 to complain.

About three hours later, Cincinnati Police Officer Charles Hains responded to the call and found the four asleep. When he awakened them, the two juveniles were arrested for truancy, a male adult passenger was allowed to leave, and Wilson was cited for driving under an operating-a-vehicle-while-intoxicated (OVI) suspension.

At trial, Hains testified that he confirmed the vehicle’s motor was running. He stated he learned that Wilson had work privileges to drive while under the OVI suspension, but that the vehicle wasn’t  close to her place of employment, so he didn’t consider the possibility that she stopped while driving to work. However, he didn’t testify that Wilson actually moved the car. Wilson argued she couldn’t be convicted of violating R.C. 4510.14 without moving the car.

The trial court disagreed and found her guilty. The court sentenced her to three days in jail, fined
her $250, imposed court costs, and suspended her driving privileges for one month.

Wilson appealed to the First District Court of Appeals. In a split decision, the First District reversed the trial court.

The Cincinnati city solicitor’s office appealed the decision to the Ohio Supreme Court, which agreed to hear the case. Because of the COVID-19 health crisis, the Supreme Court will hear arguments in the case by videoconference, which will be livestreamed.

Definition of ‘Operate’ at Heart of Dispute, Prosecutors State
At her trial, Wilson argued the term “operate” as defined in R.C. 4511.01(HHH) applies to cases of driving under an OVI suspension, and that the law requires actual movement of the vehicle. However, the city successfully argued the definition of “operate” adopted by the Ohio Supreme Court in its 1986 State v. Cleary decision applies. In Cleary, the Court ruled that “operation is more than actually driving. It’s the present ability to actually cause the car to be moved,” the prosecutors note.

The prosecutors argue R.C 4511.01(HHH) doesn’t apply because R.C. 4511.01 begins with “[a]s used in this chapter and Chapter 4513 of the Revised Code.” Because Wilson was charged under Chapter 4510, the definition is inapplicable, the office notes. The legislative history also indicates the definition doesn’t apply, the prosecutors argue.

In a 2004 sweeping rewrite of Ohio OVI laws, lawmakers created both R.C. 4510.14 and 4511.01(HHH) in the same act, the office explains. The overhaul added a new offense in Chapter 4511 called “having physical control of a vehicle under the influence.” The chapter defines OVI in R.C. 4511.19. Chapter 4511 defines “operate” as moving the vehicle so that a person who moved the vehicle would have committed an OVI offense, while an intoxicated person in the driver’s position of an unmoved vehicle could be convicted of having physical control, the office explains. The limited definition of “operate” in 4511.01(HHH) doesn’t apply to the OVI suspension violations in Chapter 4510, the prosecutor maintains.

The law presumes that legislators know what the Court has ruled, and by not changing the definition of “operate” for OVI suspension violations, the law contains the more expansive definition of “operate” from the Cleary decision, the office concludes.

Definition in Law Only One Applicable to Suspension Charge, Accused Argues
With the revision of the OVI law and creation of the physical control offense, lawmakers provided a new definition of “operate” that supersedes the Court’s decision, Wilson argues. The driving under an OVI suspension relates to someone who violated the OVI statute in Chapter 4511, she notes, and lawmakers intended to extend the definition to offenses related to OVI, such as driving under an OVI suspension.

Wilson points to the First District’s decision, in which the appellate court determined the legislature reacted to the Supreme Court’s 1994 State v. Gill decision, which extended Cleary. In Cleary¸ the driver was convicted of OVI, even though the vehicle was not moved, but the intoxicated person was in the driver’s seat and had the motor running. In Gill¸ the Court affirmed an OVI conviction for an intoxicated person in the driver’s seat with the key in the ignition but with the engine off. The dissent in Gill wrote the legislature’s intent was to punish drunk drivers, “not to punish drunk radio listeners, or people who use their cars as a four-wheeled, heated hotel room.”

Wilson maintains the 2004 rewrite reflected the concern expressed in the Gill dissent and clarified “operate” for the purpose of OVI offenses to mean moving the vehicle. Because she didn’t move the car, she wasn’t operating a vehicle while under an OVI suspension, she concludes.

Dan Trevas

Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.

Representing  the State of Ohio from the Cincinnati Solicitor’s Office: Jonathon Vogt, 513.352.4710

Representing Katherine Wilson from the Hamilton County Public Defender’s Office: David Hoffman, 513.946.3876

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Can Homeowner Be Liable for Truck’s Flip After Hitting Fortified Mailbox?

Cletus Snay et al. v. Matthew Burr et al., Case No. 2020-1057
Sixth District Court of Appeals (Huron County)

ISSUE: A landowner may generally owe no duty of care to errant motorists who strike an off-the-road hazard, but is there an exception when a landowner consciously creates a hazardous condition in a right-of-way with the actual knowledge of the danger it presents to motorists who unintentionally veer off the traveled portion of the road?

On a December 2016 afternoon, Cletus Snay was driving to work in his truck on Young Road in Bellevue as he had done nearly every workday without incident for the preceding five years. While the skies were clear, crews had salted the road earlier that morning to clear ice and snow. Snay hit a patch of unseen “black ice,” and his truck swerved off the road, hitting two mailboxes, then rolled over before landing in a portion of Matthew Burr’s yard.

Snay suffered three neck fractures from the accident and was rendered a quadriplegic. Ohio State Highway Patrol Trooper Robert Jones investigated the single-vehicle accident. While not calculating Snay’s speed, he determined the vehicle left the road because of the black ice. He also concluded that contact with Burr’s mailbox, which was still standing after the accident, caused the vehicle to flip.

Irked by Vandals, Homeowner Fortified Mailbox
Burr and his wife moved into the Young Road home in 1983. It was equipped with a rural mailbox that consisted of a 6-inch by 8-inch diameter railroad tie as a post with a metal mailbox affixed to the top of the post. The mailbox remained in good condition until 1995 when vandals, believed to be  teenage boys living across the road, began to hit the mailbox with their vehicles. Burr said in 1995 that the hits eventually cracked the railroad tie and he made plans to replace the mailbox himself.

Burr went to the Bellevue Post Office, which provided a written sheet of federal guidelines for rural mailboxes. At a deposition, Burr recalled that the guidelines suggested the use of a wooden post no more than 4-inches by 4-inches in diameter or a standard steel or aluminum pipe of 2 inches in diameter buried no more than 24 inches into the ground. Burr stated he understood the recommended mailbox supports would be stable but bend or fall away if hit by a car.

Burr used an 8-inch hollow metal pole and buried it 36 inches into the ground. He poured rocks into the hole and dry cement he had left over from a home improvement. He said he didn’t add water to harden the cement but suspected that rain would eventually seep into the hole and could harden the mix. Not long after the installation, a township maintenance supervisor who plowed the snow on Young Road told Burr that he was concerned about the mailbox and thought it was illegal. The supervisor didn’t want the mailbox to damage the snowplow, Burr said, and Burr testified that he thought the mailbox, which stood 21 inches from the side of the road, would give way if hit by the snowplow.

Motorists Sues for Injury
In 2018, Snay and his wife initiated a personal injury lawsuit against the Burrs, arguing that the unreasonable construction of the mailbox caused his injuries, and if the Burrs had a typical rural mailbox, his vehicle would had slid safely into the flat yards on the side of Young Road. The Burrs asked for and received summary judgment from the Huron County Common Pleas Court. The Snays appealed to the Sixth District Court of Appeals, which in a 2-1 decision, affirmed the trial court’s decision.

Snay and his wife appealed to the Ohio Supreme Court, which agreed to hear the case. Because of the COVID-19 health crisis, the Supreme Court will hear arguments in the case by videoconference, which will be livestreamed.

Mailbox Construction Called Unreasonably Dangerous, Driver Asserts
Snay notes the appellate court relied on the general rule that Ohio law imposes no duty on property owners to motorists who lose control of their vehicles, leave the traveled portion of he roadway, and strike an off-the-road object within the right-of-way. The right-of-way is generally the unpaved areas on the sides of the road. Snay maintains that the lower courts incorrectly focused on the location of the mailbox, a distance of less than 2 feet from the road as recommended by the postal service to assist rural carriers. Rather, this case raises the question of whether a landowner can place an unreasonably dangerous mailbox in the right-of-way, he asserts.

Snay explains that most cases concerning motorist accidents with obstructions in the right-of-way deal with utility poles, where there is no duty owed to motorists who leave the highway if the utility had government approval to place the poles in the right of way, or with obstructions that are the responsibility of local governments. The few cases dealing with private landowner responsibilities involved obstructions that existed on the land and claims that the landowner should have removed them from the right-of-way, he notes.

Burr consciously placed an unreasonable hazard in the right-of-way, Snay argues, because Burr admitted he knew that his actions were beyond the limits suggested by the postal service, and he knew that passing cars and trucks had clipped his mailbox and vehicles had slid off the road near his property in the past. Citing the Sixth District’s 2004 Floering v. Roller decision, Snay asserts a landowner has no duty to remove an off-the-road hazard that did not affect travel on the highway “unless the landowner had actual or constructive knowledge of the danger posed to travelers on the highway.”

Burr knew the danger his mailbox posed to motorists, and a report by an accident reconstructionist,  — based on the highway patrol’s investigation — indicated had the mailbox given way, the truck would not have flipped over, Snay concludes.

Snay also notes the Sixth District found that the mailbox didn’t cause him to leave the road, but rather it was his own driving on a slick road that caused the accident, so Burr isn’t responsible for the injuries. Snay maintains, though, that tort law allows for more than one cause to be the proximate cause of one’s injuries. While sliding on the black ice did cause him to leave the road, the unreasonably dangerous mailbox caused his severe injuries, which makes Burr liable, Snay asserts.

‘On the Highway’ Crucial to Duty Owed to Motorist, Landowner Maintains
Burr argues that Snay dismisses a key fact in the Floering decision and all other Ohio court cases finding that a landowner owes no duty to motorists who leave the traveled portion of the road. Burr notes Floering indicates there may be an exception when “the landowner had actual or constructive knowledge of the danger posed to travelers on the highway.” The exception is limited to dangers posed to travelers “on the highway,” he emphasizes, and not for those who leave the road.

Burr indicates the Ohio Supreme Court has ruled that no duty is owed to motorists unless an off-road condition renders a road unsafe for usual and ordinary travel. The position has mostly been used to support cases where a landowner’s off-the-road property interferes with travel on the road. It has also been cited in cases where the road’s narrow construction purposely requires portions of large vehicles to cross off the road to make a turn, Burr notes. In either case, whether the obstruction poses a danger to a vehicle on the road or off the road, the landowner is responsible only if the condition renders the road unsafe for “usual and ordinary travel,” he argues.

The landowner owes no duty to motorists who leave the road because of accidents, especially when it comes to black ice on the road that the landowner has no responsibility to remove. Burr argues the Supreme Court has struck a reasonable balance that imposes liability on landowners if they obstruct travel on the highway but provides no duty when their off-the-road objects don’t interfere with ordinary travel. Burr states it was horribly tragic that the “one square foot” of his property that Snay happened to hit on all of Young Road was his mailbox, but the mailbox wasn’t responsible for Snay’s injuries.

Dan Trevas

Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Representing Cletus Snay et al.: Kathleen St. John, 216.621.2300

Representing Matthew Burr et al.: Douglas Leak, 330.670.7300

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Reprimand Suggested for Attorney Who Pre-Notarized Documents

Mahoning County Bar Association v. Joseph R. Macejko, Case No. 2020-1513
Mahoning County

The Ohio Board of Professional Conduct recommends a public reprimand for Joseph Macejko, an attorney in Poland, Ohio. The board found that Macejko, as part of compiling estate-planning materials for a friend’s parents, pre-notarized documents before visiting them.

Macejko objects to the proposed sanction, asking that the charge be dismissed. The Ohio Supreme Court will hear arguments in the case from Macejko and the Mahoning County Bar Association, which investigated the alleged misconduct. Because of the COVID-19 pandemic, the oral argument will be held by videoconference, which will be livestreamed.

Attorney Drafts Estate-Planning Documents
Macejko prepared updated wills, powers of attorney, and healthcare powers of attorney for Joseph Durick Jr. and Mary Lou Durick. The couple has three children, and one of their sons, Robert, is Macejko’s friend and client. Macejko visited the Duricks with the final drafts of the documents in late July 2017. Before he went to their home, Macejko pre-notarized the unsigned powers of attorney because he was worried about forgetting to bring his notary stamp and seal. The Duricks didn’t sign the documents during the attorney’s visit. Macejko stated that the Duricks’ daughter asked to reschedule because Mary Lou was ill.

In August 2017, the Duricks’ daughter moved in with her parents and contacted a different attorney, who prepared new wills and powers of attorney. Mary Lou died in October, and Joseph died in December.

Their son Robert contested the will in 2019. Macejko was deposed. He was shown Mary Lou Durick’s power of attorney, which was signed. He stated he was unaware that she had signed the document. He said he didn’t hear back from the Duricks after he gave them the documents, and he never billed them for the work. He testified he didn’t know until the deposition that the Duricks had used another attorney’s services for estate planning.

After the deposition, Macejko wrote a letter to the Mahoning County Bar Association to report his potential rule violation by pre-notarizing the documents.

Professional Conduct Board Finds Action Was Misrepresentation
The board panel reviewing the allegation determined that, by pre-notarizing the estate-planning documents, Macejko violated the rule against conduct involving misrepresentation. Mary Lou Durick didn’t acknowledge her signature before Macejko, as required by state law at the time the attorney pre-notarized the documents, the panel found.

The panel identified no aggravating factors. Among the mitigating circumstances were the attorney’s lack of a dishonest or selfish motive and no prior disciplinary record. The panel recommended a public reprimand.

In December 2020, the board adopted the panel’s findings and proposed sanction.

Lack of Intent Supports Dismissal of Charge, Attorney Maintains
The professional conduct rules prohibit a lawyer from engaging in dishonesty, fraud, deceit, or misrepresentation. Macejko states that dishonesty, fraud, and deceit each involve an element of intent. In that context, misrepresentation also must require intentional wrongdoing, the attorney argues.

However, he maintains, he notarized the powers of attorney with the expectation that the Duricks would sign the documents in his presence that day. He emphasizes he didn’t notarize a signature that he didn’t plan to witness, and he didn’t know until the deposition that Mary Lou had signed the power of attorney. He contends that the attorneys who have received public reprimands for improper notarizations intentionally sidestepped the notarization requirements. Because his error was unintentional, he asks the Court to dismiss the rule violation and impose no sanction.

Attorney’s Intentional Action Violated Notary Duties, Bar Association Argues
The Mahoning County Bar Association responds that state law in 2017 required Macejko to have the Duricks appear before him and to acknowledge that they signed the documents before he notarized them. Macejko clearly violated his duty as a notary, the bar association maintains.

The bar association also notes that Macejko didn’t follow up with the Duricks after he dropped off the documents, he made no attempt to retrieve the documents, and he didn’t tell the Duricks that they shouldn’t sign or use the documents without discussing with him.

The attorney’s absence of intent to violate the rule doesn’t negate the violation, the bar association argues. It also questions his lack of intent. Macejko doesn’t deny that he intentionally notarized a blank document for his own convenience – which alone is a violation of the professional conduct rules, the bar association states. The group adds that intentional misconduct doesn’t require proof of “bad” or “malevolent” intent, concluding that a public reprimand is the appropriate penalty.

Kathleen Maloney

Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.

Representing Joseph R. Macejko: George Jonson, 513.768.5220

Representing the Mahoning County Bar Association: David Comstock Jr., 330.286.3701

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