State v. Spano

[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.