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Frank Wagner v. City of Garfield Heights

October 24, 2011


The opinion of the court was delivered by: Judge Solomon Oliver, Jr.


Currently pending before the court is Plaintiff Frank Wagner's ("Plaintiff") Motion for a Temporary Restraining Order. (ECF No. 2.) Plaintiff is seeking entry of a temporary restraining order, prohibiting Defendant City of Garfield Heights (the "City"), from enforcing against him and others, Section 1140.362 (the "Ordinance") of the City's codified ordinances and any other sign regulation seeking to limit, restrict, or prohibit the posting of political signs within the City that are larger than six square feet. Plaintiff contends that enforcement of the Ordinance infringes upon his and others' First Amendment rights. The court held a hearing on the record regarding the Motion for Temporary Restraining Order on Friday, October 21, 2011. Thereafter, Defendants filed their Opposition on October 24, 2011. For the reasons stated herein, Plaintiff's Motion for a Temporary Restraining Order is granted in part and denied in part.


Plaintiff is a resident of the City. (Compl. ¶ 12, ECF No. 1.) Two political issues are currently being debated within the City: (1) the use of cameras to enforce traffic laws; and (2) the imposition of a trash tax. (Id. at ¶ 20.) Councilwoman Tracy Mahoney ("Councilwoman Mahoney") has supported these measures. (Id. at ¶ 21.) She is currently seeking re-election to the City Council in this November's election. (Id. at ¶ 23.)

In September of this year, Plaintiff posted a sign in the yard of his residence, to demonstrate his opposition to Councilwoman Mahoney. (Id. at ¶ 22.) Plaintiff's sign measured four feet by four feet, and therefore was 16 square feet. (Id. at ¶ 29.) The sign stated the following: "You do the math: Traffic Camera's [sic] Rubbish Trash = Mahoney Baloney." (Id. at ¶ 22.) Shortly thereafter, Plaintiff received a letter from Defendant William Wervey ("Wervey"), Building Commissioner for the City, dated September 19, 2011. (Id. at ¶ 26.) This letter informed Plaintiff that his sign violated the Ordinance regarding the maximum permissible size of political signs. (Id. at ¶ 28.) The Ordinance states that

[p]olitical signs, may be placed in a window or on the lawn in any zoning district and shall not exceed six (6) square feet per sign, and shall not exceed four (4) feet in height. Such signs shall not be placed in the City's right-of-way, shall be maintained in good condition, and shall be removed after the political issue or campaign is completed or no longer contested.

Wervey instructed Plaintiff to remove the sign or to reduce the size of the sign in order to conform to the Ordinance. (Letter, ECF No. 1-3.) Wervey directed Plaintiff to correct his sign by September 23, 2011, and if he did not do so, the City would proceed with legal action in the Garfield Heights Municipal Court. (Id.) Section 1140.99 of the Codified Ordinances of the City states that each day a sign is in violation of the zoning regulations a separate violation occurs, and subjects the person violating the Odinance to a fine of up to $1,000 per day. Because of the potential court proceedings that could be brought against him, and the significant fines at issue, Plaintiff removed his sign. (Compl. ¶¶ 32, 33, ECF No. 1.)

Plaintiff filed the instant case on October 13, 2011. (ECF No. 1.) He also filed a Motion for a Temporary Restraining Order the same day. (ECF No. 2.) He asserts that the Ordinance, both facially and as applied to Plaintiff's political speech, restricts his and others' rights under the First and Fourteenth Amendments. He further asserts that the City's Sign Regulations are manifestly unconstitutional and "severely unduly burden the right and ability for individuals to engage in the marketplace of ideas through the exercise of one's free speech rights." (Mot. at 5, ECF No. 2.)


Plaintiff asserts a facial challenge to the Ordinance, as well as to any other ordinances restricting the size of political signs. However, Plaintiff does not make any arguments to demonstrate how the Ordinance(s) is overbroad or vague, but instead argues solely on his as-applied claim. Therefore, the court construes this Motion as seeking only a temporary restraining order for Plaintiff's claim that the Ordinance and any other City ordinances regulating the size of political signs are unconstitutional as applied to him.


Federal Rule of Civil Procedure 65 governs the issuance of temporary restraining orders and preliminary injunctions. When ruling on a motion for a temporary restraining order or preliminary injunction, a district court must consider and balance four factors: (1) whether the movant has a strong or substantial likelihood of success on the merits; (2) whether the movant will suffer irreparable harm without the relief requested; (3) whether granting the relief requested will cause substantial harm to others; and (4) whether the public interest will be served by granting the relief requested. See Memphis Planned Parenthood, Inc. v. Sundquist, 175 F.3d 456, 460 (6th Cir. 1999); Schenck v. City of Hudson, 114 F.3d 590, 593 (6th Cir. 1997).


A. Likelihood of Success on the Merits

The court must first examine the strength of Plaintiff's likelihood of success on the merits. The Sixth Circuit has stated that "[w]hen a party seeks a preliminary injunction on the basis of the potential violation of the First Amendment, the likelihood of success on the merits often will be the determinative factor." Detroit Free Press v. Ashcroft, 303 F.3d 681, 710 (6th Cir. 2002) (internal citation and quotation omitted). Therefore, the court must find that Plaintiff has a high ...

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