Broke Ass Phone v. Boardman Twp. Zoning Bd. of Appeals , 2019 Ohio 4918 ( 2019 )

[Cite as Broke Ass Phone v. Boardman Twp. Zoning Bd. of Appeals, 2019-Ohio-4918.]
IN THE COURT OF APPEALS OF OHIO
SEVENTH APPELLATE DISTRICT
MAHONING COUNTY
BROKE ASS PHONE,
Appellant,
v.
BOARDMAN TOWNSHIP ZONING BOARD OF APPEALS,
Appellee.
OPINION AND JUDGMENT ENTRY
Case No. 18 MA 0115
Civil Appeal from the
Court of Common Pleas of Mahoning County, Ohio
Case No. 17 CV 2374
BEFORE:
Gene Donofrio, Cheryl L. Waite, Carol Ann Robb, Judges.
JUDGMENT:
Reversed
Atty. Matthew Giannini, 1040 South Common Place, Suite 200, Youngstown, Ohio
44514, for Appellant, and
Atty. Donald Duda, Jr., Mahoning County Prosecutor’s Office, 761 Industrial Road,
Youngstown, Ohio 44509, for Appellee.
–2–
Dated:
November 15, 2019
DONOFRIO, J.
{¶1} Appellant, Broke Ass Phone, appeals from a Mahoning County Common
Pleas Court judgment upholding the decision of appellee, Boardman Township Board of
Zoning Appeals (BZA), denying appellant’s application for a zoning permit to use its
legally trademarked and registered name, “Broke Ass Phone,” on a commercial street
sign in front of its business.
{¶2} Appellant is in the business of repairing smartphones and smart devices.
It is a local company with multiple locations including one in Howland which has already
permitted its signage with its legally trademarked and registered name “Broke Ass
Phone.”
{¶3} On November 4, 2015, appellant applied for a zoning permit to reface the
commercial street sign in front of its store in Boardman, Ohio. The sign was to use
appellant’s business name, “Broke Ass Phone.”
{¶4} On November 16, 2015, the Boardman Township Zoning Inspector denied
the application citing Boardman Township Zoning Resolution, Article XII, Section H, Letter
C, Number 3. That section prohibits signs with obscene words or words of immoral
character. The denial letter informed appellant of its right to appeal the zoning inspector’s
decision.
{¶5} Appellant timely appealed that decision to the BZA and the matter was set
for a hearing. At the December 22, 2015 public hearing appellant’s counsel requested a
continuance, which was granted. The hearing was rescheduled for August 29, 2017;
nothing in the record indicates why there was a long delay between hearings.
{¶6} At the August 29, 2017 hearing, appellant’s counsel presented legal
arguments as to why the permit should not have been denied. The arguments were
based on the First Amendment Right to Free Speech. No witnesses testified, no other
evidence was submitted, and despite public notice there was no testimony from the floor
in opposition to the application. In a vote of 3 to 1 the appeal was denied; the only attorney
on the zoning board voted to reverse the inspector’s decision.
Case No. 18 MA 0115
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{¶7} Appellant timely appealed the decision to the Mahoning County Common
Pleas Court. Following briefing, the Common Pleas Court affirmed the BZA’s decision.
The trial court reasoned:
The denial of BAP’s [Broke Ass Phone’s] application involves the
township exercising a bona fide power conferred upon it by the revised code
and the record contains no evidence to the contrary. This Court cannot
substitute its judgment for that of the BZA [Boardman Township Board of
Zoning Appeals]. In considering the record as a whole, the Court finds that
the August 31, 2017 decision of the BZA is not unconstitutional, illegal,
arbitrary, capricious, unreasonable, or unsupported by the preponderance
of the substantial, reliable, and probative evidence. Accordingly, the
decision of the Boardman Township Board of Zoning Appeals dated August
31, 2017 is hereby affirmed.
(10/11/18 J.E.).
{¶8} Appellant timely appealed that decision. Appellant now raises a single
assignment of error.
{¶9} Appellant’s sole assignment of error states:
THE TRIAL COURT ERRED AS A MATTER OF LAW IN FINDING
THAT THE BOARDMAN TOWNSHIP BOARD OF ZONING APPEALS DID
NOT VIOLATE APPELLANT’S FIRST AMENDMENT RIGHTS UNDER
THE UNITED STATES CONSTITUTION AND THE OHIO CONSTITUTION
PURSUANT TO EXTENSIVE FEDERAL AND STATE CASE LAW WHEN
IT DENIED APPELLANT’S APPLICATION FOR A SIGNAGE PERMIT.
{¶10} Appellant contends the denial of its application for signage violates its First
Amendment right to free speech. The BZA counters arguing appellant did not present
any evidence or witness testimony. It also contends appellant failed to raise its
unconstitutional argument in the common pleas court. The BZA also asserts the proper
parties were not named to the appeal. Specifically, that appellant named the BZA as the
party to the appeal, not the zoning inspector. The BZA indicates since case law states
Case No. 18 MA 0115
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the board of zoning appeals cannot appeal a common pleas court’s reversal of its
decision, it cannot be the named party in the appeal.
{¶11} Initially, we must address the BZA’s claim that it cannot be a party to this
appeal.
{¶12} The case law the BZA cites supporting its position indicates boards of
zoning appeals cannot appeal common pleas courts’ reversals of the boards’ decisions.
In this case, the BZA was the only named party; appellant did not name the zoning
inspector as a party when it appealed the BZA’s decision. The BZA contends we should
consider this appeal to be improperly filed and dismiss it without addressing the merits.
This argument was made to the common pleas court; however, the court did not address
this argument.
{¶13} Case law indicates boards of zoning appeals do not have standing to
appeal common pleas courts’ decisions reversing the boards of zoning appeals’
decisions. Rauch v. Jefferson Twp. Bd. of Zoning Appeals, 2d Dist. Montgomery No.
26941, 2016-Ohio-967, ¶ 7-9. In 1952, the Ohio Supreme Court held, “[n]either a
township board of zoning appeals nor any of its members as such have a right to appeal
from the judgment of a court, rendered on appeal from a decision of such board and
reversing and vacating that decision.” DiCillo & Sons, Inc. v. Chester Zoning Bd. of
Appeals, 158 Ohio St. 302, 109 N.E.2d 8 (1952), syllabus. The proper party to such
appeal is the city, the city official responsible for enforcing the zoning regulations, or other
persons aggrieved by the court's decision. Sich v. Bd. of Zoning Appeals for the City of
Middletown, 12th Dist. Butler No. CA83-08-093, 1984 WL 3386 (July 16, 1984).
{¶14} But in Sich, the Second Appellate District indicated that “normally” a board
of zoning appeals cannot appeal the common pleas court’s reversal of its decision. Id. It
then stated that since in that case there was no objection to the board of zoning appeals
appealing the common pleas court’s decision, it would address the merits of the case. Id.It explained the Ohio Supreme Court has recognized the principle that, although adverse
parties have not been named in the notices of appeal to common pleas courts, those
parties remain adverse and may appeal to a higher court. Id. citing Gold Coast Realty v.
Bd. of Zoning Appeals, 26 Ohio St.2d 37, 39, 268 N.E.2d 280 (1971) and Thomas v.
Webber [In re Carlisle Ridge Village], 15 Ohio St.2d 177, 239 N.E.2d 26 (1968).
Case No. 18 MA 0115
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{¶15} Although appellant should have named the zoning inspector in the appeal,
this court will not dismiss the appeal on this technicality. The attorney representing the
BZA is the same attorney that would be representing the zoning inspector. Likewise, the
merit arguments asserted by the BZA are the same arguments that would be asserted by
the zoning inspector. Furthermore, it is a common practice (even if it is a mistake) to
name the board of zoning appeals in the appeal. Case captions of zoning appeals often
indicate the boards of zoning appeals are named as the appellee, and in those cases
there is no question or argument as to whether they are the proper party. Smith v. Warren
Cty. Rural Zoning Bd. of Zoning Appeals, 12th Dist. Warren No. CA2018-07-078, 2019-
Ohio-1590; Ferrara v. Liberty Twp. Zoning Bd. of Appeals, 2018-Ohio-3537, 109 N.E.3d
41, ¶ 30 (11th Dist.) (The BZA filed a cross appeal in the case; the cross appeal was
dismissed for lack of standing); Homan v. Franklin Twp. Bd. of Zoning Appeals, 3d Dist.
Mercer No. 10-18-04, 2018-Ohio-3717; Premier Dev., Ltd. V. Poland Twp. Bd. Of Zoning
Appeals, 7th Dist. Mahoning No. 14 MA 91, 2015-Ohio-2025.
{¶16} Next, we note that despite appellee’s allegation to the contrary, appellant
did raise its First Amendment argument in the trial court.
{¶17} Thus, we will move on to consider the merits of appellant’s assignment of
error.
{¶18} This court previously set out the applicable standards of review for both the
common pleas court and the appellate court when dealing with an appeal from the board
of zoning appeals:
When a trial court reviews an administrative appeal from a board of zoning
appeals, “it must review the record to determine whether the administrative
order is unconstitutional, illegal, arbitrary, capricious, unreasonable, or
unsupported by the preponderance of substantial, reliable, and probative
evidence.” Gonda v. Austintown Tp. Bd. of Zoning Appeals, 7th Dist. No.
05 MA 14, 2006-Ohio-670, 2006 WL 338385, ¶ 8. An appellate court's
review is even more limited in scope; we may not weigh the evidence,
instead reviewing solely for error of law. Angels for Animals, Inc. v. Beaver
Township Board of Zoning Appeals, 7th Dist. Mahoning No. 04 MA 80,
2004-Ohio-7209, 2004 WL 3090174, ¶ 15.
Case No. 18 MA 0115
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Savon Ents. v. Boardman Twp. Tr., 7th Dist. Mahoning No. 14 MA 0029, 2016-Ohio-735,
60 N.E.3d 534, ¶ 9-10.
{¶19} Thus, this court reviews the trial court’s decision solely for an error of law.
Because it was an error of law to conclude the zoning board’s decision was not
unconstitutional, we must reverse the trial court’s judgment.
{¶20} In this case, the trial court found that the denial of appellant’s application
involved the township exercising a bona fide power conferred on it by the Revised Code
and the record contained no evidence to the contrary. The court stated that it could not
substitute its judgment for that of the board of zoning appeals and that considering the
record as a whole, the board’s decision was not unconstitutional, illegal, arbitrary,
capricious, unreasonable, or unsupported by the evidence.
{¶21} Appellant’s sign is considered commercial speech. Commercial speech is
usually defined as speech that simply proposes a commercial transaction. Tipp City v.
Dakin, 186 Ohio App.3d 558, 2010-Ohio-1013, 929 N.E.2d 484, ¶ 31, quoting United
States v. United Foods, Inc., 533 U.S. 405, 409, 121 S.Ct. 2334, 150 L.Ed.2d 438 (2001).
The sign in question here proposes that consumers get their phones repaired at
appellant’s place of business.
{¶22} The First Amendment, as applied to the States through the Fourteenth
Amendment, protects commercial speech from unwarranted governmental regulation.
Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Commission of New York, 447 U.S. 557,
561, 100 S.Ct. 2343, 65 L.Ed.2d 341 (1980). The United States Supreme Court has
“afforded commercial speech a limited measure of protection, commensurate with its
subordinate position in the scale of First Amendment values, while allowing modes of
regulation that might be impermissible in the realm of noncommercial expression.”
Ohralik v. Ohio State Bar Ass'n, 436 U.S. 447, 456, 98 S.Ct. 1912, 56 L.Ed.2d 444 (1978).
{¶23} The controlling considerations for determining the constitutionality of
commercial speech come from Cent. Hudson Gas & Elec. Corp., 447 U.S. 557. Cent.
Hudson instructs courts to consider:
(1) whether the regulated commercial speech concerns a lawful activity and
is not misleading; (2) whether the restriction seeks to implement a
substantial governmental interest; (3) whether the restriction directly
Case No. 18 MA 0115
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advances that interest; and (4) whether the restriction is no more extensive
than is necessary to achieve that interest.
Tipp City v. Dakin, 186 Ohio App.3d 558, 2010-Ohio-1013, 929 N.E.2d 484 (2d Dist.), ¶
34, citing Cent. Hudson at 557.
{¶24} The zoning board and the trial court agreed that the sign in question
concerns a lawful activity and is not misleading.
{¶25} We move on then to examine whether the Boardman Township restriction
seeks to implement a substantial governmental interest. The restriction at issue, Article
XII, Section (H)(C)(3), states: “No signs, billboards or advertising device of any kind are
permitted which contain statements, words or pictures of obscene, pornographic, immoral
character or which contain advertising that is false.”
{¶26} It seems clear that there is a legitimate governmental interest in preventing
the township’s residents from being exposed to obscene, pornographic, or immoral signs
and billboards.
{¶27} The problem arises here with the word “ass.” Does restricting the use of
the word “ass” on the Broke Ass Phone sign prevent Boardman’s residents from being
exposed to obscene, pornographic, or immoral words or statements?
{¶28} In this case the word “ass” must be viewed in context. It seems clear that
the word “ass” as used in the name “Broke Ass Phone” is not at all pornographic.
{¶29} Thus, we turn to whether it is obscene or immoral. “Obscene” is defined
as “disgusting to the senses: repulsive,” “abhorrent to morality or virtue,” and “containing
or being language regarded as taboo in polite usage.” https://www.merriam-
webster.com/dictionary/obscene. “Immoral” is defined as “not moral.”
https://www.merriam-webster.com/dictionary/immoral. And “moral” is defined as “of or
relating to principles of right and wrong in behavior.” https://www.merriam-
webster.com/dictionary/moral.
{¶30} When we view the word “ass” in context, it is clear that it is neither obscene
nor immoral when used on the sign “Broke Ass Phone.” In this context, the word ass is
not used to describe part of the body and is not in reference to any type of crude or
offensive behavior. Instead, the term “ass” when used in a phrase like “Broke Ass Phone,”
Case No. 18 MA 0115
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has become commonly used as a slang term to say that the phone is “really” or “badly”
broken.
{¶31} In fact Merriam-Webster’s online dictionary contains various similar
definitions and uses of the term “ass.” For instance: “used as a postpositive intensive
especially with words of derogatory implication [as in] fancy-ass” and “often compounded
with a preceding adjective [as in] Don't be a smart-ass.” https://www.merriam-
webster.com/dictionary/ass. Thus, the term “ass” has become somewhat part of an
adjective in present-day speech.
{¶32} Again, the term must be taken in context. Consider if instead of “Broke Ass
Phone” the sign referred to the word “ass” as part of the body with some type of lewd or
sexual connotation. In this context, the term “ass” could be construed as obscene or
immoral. But in the “Broke Ass Phone” context, the sign is simply advertising that the
company will fix your “really badly broken phone.”
{¶33} At the public hearing, appellant’s business manager appeared along with
appellant’s attorney. Also in attendance were the chairman of the zoning board of
appeals, the three other board members, the director of zoning and development, and the
assistant director of zoning and development. Appellant’s counsel presented his
argument, including arguing that denial of the permit violated his client’s First Amendment
right. (Tr. 8-9). The chairman subsequently asked if there was anyone who would like to
address the board in opposition to appellant’s application. (Tr. 12). The record indicates
there was no testimony from the floor in opposition. (Tr. 12). The four board members
then voted 3 to 1 to deny the application. (Tr. 12-13). The chairman and only board
member who is an attorney voted in favor of granting the application. (Tr. 13).
{¶34} Public notice was given regarding the issue in this case and not a single
objection was lodged at the hearing before the board of zoning appeals. (8/29/17 Tr. 11-
12). Thus, no Boardman Township resident or business owner was offended enough by
the use of the Broke Ass Phone sign to bother to voice an objection at the hearing on the
matter. And both the director of zoning and development and the assistant director of
zoning and development were present at the hearing. Neither the director nor the
assistance director presented any evidence of being offended by the sign.
Case No. 18 MA 0115
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{¶35} “The State cannot regulate speech that poses no danger to the asserted
state interest[.]” Cent. Hudson, 447 U.S. at 565, citing First National Bank of Boston v.
Bellotti, 435 U.S. 765, 794-795, 98 S.Ct. 1407, 55 L.Ed.2d 707 (1978). The Broke Ass
Phone sign poses no danger to the township’s interest of preventing its residents from
being exposed to obscene, pornographic, or immoral signs and billboards. In this case
the use of name Broke Ass Phone on a commercial sign is not obscene, pornographic,
or immoral. Simply said, the language used on the sign does not fit into the category of
language the restriction was meant to prohibit. Because prohibiting the sign would not
advance a substantial government interest, it is unconstitutional to restrict its use. Thus,
the trial court erred in failing to find the restriction of the sign unconstitutional.
{¶36} Accordingly, appellant’s sole assignment of error has merit and is
sustained.
{¶37} For the reasons stated above, the trial court’s judgment is hereby reversed.
Waite, P. J., concurs.
Robb, J., dissents with dissenting opinion.
Case No. 18 MA 0115
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Robb, J., dissenting.
{¶38} I respectfully dissent from the decision reached by my colleagues. I agree
with my colleagues that this appeal should not be dismissed on the technicality that
Appellant did not name the zoning inspector in the appeal. I also agree that Appellant did
raise the First Amendment argument to the trial court and thus, that argument is not
waived. However, given our limited standard of review, I would affirm the decision of the
Mahoning County Common Pleas Court upholding the decision of Appellee Boardman
Township Board of Zoning Appeals (BZA).
{¶39} Recently, this court explained the standard of review for reviewing a board
of zoning appeals decisions as:
When a trial court reviews an administrative appeal from a board of zoning
appeals, “it must review the record to determine whether the administrative
order is unconstitutional, illegal, arbitrary, capricious, unreasonable, or
unsupported by the preponderance of substantial, reliable, and probative
evidence.” Gonda v. Austintown Tp. Bd. of Zoning Appeals, 7th Dist. No. 05
MA 14, 2006-Ohio-670, 2006 WL 338385, ¶ 8. An appellate court's review
is even more limited in scope; we may not weigh the evidence, instead
reviewing solely for error of law. Angels for Animals, Inc. v. Beaver
Township Board of Zoning Appeals, 7th Dist. No. 04 MA 80, 2004-Ohio-
7209, 2004 WL 3090174, ¶ 15. An appellate court “must affirm the
judgment of the trial court unless its decision is so at odds with the evidence
presented first to the board and later to the trial court as to be erroneous as
a matter of law.” Sottile v. Amberley Village Tax Bd. of Review, 146 Ohio
App.3d 680, 683, 767 N.E.2d 1212 (10th Dist.2001).
The party challenging the board's determination carries the burden of proof
in rebutting the presumption of the correctness of the board's decision.
Essroc Materials, Inc. v. Poland Twp. Bd. of Zoning Appeals, 117 Ohio
App.3d 456, 462, 690 N.E.2d 964 (7th Dist.1997), citing Dudukovich v.
Case No. 18 MA 0115
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Lorain Metro. Hous. Auth. (1979), 58 Ohio St.2d 202, 12 O.O.3d 198, 389
N.E.2d 1113.
Savon Ents. v. Boardman Twp. Tr., 7th Dist. Mahoning No. 14 MA 0029, 2016-Ohio-735,
60 N.E.3d 534, ¶ 9-10.
{¶40} I agree the speech at issue in this case is commercial speech, the sign in
question concerns a lawful activity, and is not misleading. The issue here is whether
under Zoning Resolution Article XII, Section (H)(C)(3) the word ass is “obscene,”
“pornographic,” or to be of “immoral character.”
{¶41} Most people would probably agree that the word “ass” is not by itself
pornographic. Thus, the issue is whether that word is obscene or of immoral character.
Neither obscene nor immoral character are defined in the zoning resolution. Obscene is
commonly defined as offensive or disgusting to the senses. https://www.merriam-
webster.com/dictionary/obscene. Immoral character is ordinarily defined as evil or bad
character. https://www.yourdictionary.com/immorality.
{¶42} Given the definitions stated above, the word “ass” can qualify as obscene.
While some people do not find the word offensive, there are many reasonable people
within the community that do find the word offensive. The BZA was within in its power to
deem the word offensive.
{¶43} Furthermore, I disagree that we have to view the word in context and when
doing so, that indicates the name “Broke Ass Phone” cannot be found as a matter of law
to be either obscene or immoral. If context was all that was necessary, then if the
company’s name was “Fucked Up Phone” that would be sufficient to require that name to
be allowed on a sign as commercial speech. Similar to the phrase “broke ass,” the phrase
“fucked up” also means “badly” or “really” broken.
{¶44} Moreover, Appellant did not meet its burden given the standard of review.
It provided no evidence that the word “ass” in its name is not offensive. It was Appellant’s
burden to demonstrate the word “ass” as used in its name was not offensive. It could
have submitted evidence through affidavits or testimony from residents that it did not find
the name offensive. However, no such evidence was offered. Instead, it relied on the
Case No. 18 MA 0115
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absence of objections at the public hearing. The absence of objections does not
necessarily mean the name was not offensive.
{¶45} Consequently, given our standard of review, I would affirm the Common
Pleas Court’s decision affirming the BZA’s decision.
Case No. 18 MA 0115
[Cite as Broke Ass Phone v. Boardman Twp. Zoning Bd. of Appeals, 2019-Ohio-4918.]
For the reasons stated in the Opinion rendered herein, the assignment of error
is sustained and it is the final judgment and order of this Court that the judgment of the
Court of Common Pleas of Mahoning County, Ohio, is reversed. Costs to be taxed
against the Appellee.
A certified copy of this opinion and judgment entry shall constitute the mandate
in this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that
a certified copy be sent by the clerk to the trial court to carry this judgment into
execution.
NOTICE TO COUNSEL
This document constitutes a final judgment entry.