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Bench Billboard Company, Inc. v. Louisville-Jefferson County Metro Government

United States District Court, Sixth Circuit

July 9, 2013



CHARLES R. SIMPSON, III, Senior District Judge.

The dispute in this action centers around the amendment by Louisville-Jefferson County Metro Government ("Metro") of two street furniture ordinances, Louisville Metro Code of Ordinances ("LMCO") Sections 97.070 and 97.076. Plaintiff Bench Billboard Company, Inc. ("BBC") has raised a host of federal and state claims concerning the validity of the amended ordinances and the application of the amended ordinances to BBC's business. Currently pending before the court is a motion filed by Metro for the court to abstain from exercising jurisdiction and/or to dismiss the state claims pursuant to Rule 12(b)(6) (DN 7). For the reasons stated herein, the motion will be granted to the extent of holding this action in abeyance pending the outcome of ongoing state proceedings.


According to the allegations in the complaint, BBC has been engaged in the business of outdoor advertising via benches featuring advertising signs since 1965. In the Louisville Metro area, BBC's benches are typically located at bus stops, on both public and private property, including in public right of ways. The advertisements are located on the back rests of the benches.

According to BBC, in 2011 Metro began confiscating, without notice to BBC, BBC benches from bus stops in Louisville under the authority of the LMCO. BBC alleges that at least 30 of its benches were confiscated.

Then, in 2012, Metro amended Sections 97.070 and 97.076 in such a way as to require permits for private parties to place benches in public rights of way. Further, the amendments required the benches to be "monochromatic in appearance" and have a "slatted, see-through back or no back." BBC alleges that those requirements would preclude the placement of advertising on benches. BBC states that any attempt it made to obtain a permit to place its advertising benches in public rights of way would be futile. In its motion to dismiss, Metro agrees that the requirements would exclude the current design of BBC's benches, although Metro disagrees that the ordinances would preclude any type of advertising at all on benches.

According to the complaint, in June of 2012 Metro began issuing obstruction citations to BBC and then impounding BBC's benches; ultimately, BBC received approximately 88 citations. Each citation carried a fine of $500 per bench, and Metro would not release the benches to BBC without payment of the fine and an impoundment fee.

BBC challenged the citations before the Louisville Metro Code Enforcement Board. BBC attempted to raise constitutional challenges to the amended ordinances, but the Code Enforcement Board refused to hear BBC's constitutional claims. The Code Enforcement Board found that the benches did not comply with the revised ordinances and upheld the citations. BBC appealed the Code Enforcement Board's determination to the Jefferson District Court.

BBC also filed the complaint in this action, raising claims under the federal and state constitutions and state statutory and common law. In its complaint, BBC seeks an injunction, declaratory judgments, and compensatory and punitive damages. Metro now seeks to have this court abstain from hearing BBC's claims based on the abstention doctrine expressed in Younger v. Harris, 401 U.S. 37 (1971). In addition or in the alternative, Metro asks that BBC's state law claims be dismissed under Federal Rule of Civil Procedure 12(b)(6).


" Younger v. Harris ... and its progeny espouse a strong federal policy against federal-court interference with pending state judicial proceedings absent extraordinary circumstances." Middlesex County Ethics Comm. v. Garden State Bar Ass'n, 457 U.S. 423, 431 (1982). "There are three requirements for proper invocation of Younger abstention: (1) there must be on-going state judicial proceedings; (2) those proceedings must implicate important state interests; and (3) there must be an adequate opportunity in the state proceedings to raise constitutional challenges.'" Squire v. Coughlan, 469 F.3d 551, 555 (6th Cir. 2006) (quoting Sun Ref. & Mktg. Co. v. Brennan, 921 F.2d 635, 639 (6th Cir. 1990)).

There is little doubt that the first prong is met here. At the time BBC filed its complaint in this court, there was a pending action in the Jefferson District Court concerning the application of Metro's ordinances to BBC's benches, which clearly constitutes a state judicial proceeding.[1]

Next, the court finds that the state proceedings implicate important state interests. In the inquiry into the importance of a state's interests in its proceedings, a court does "not look narrowly to interest in the outcome of the particular case, " but instead looks to "the importance of the generic proceedings to the state." New Orleans Public Serv., Inc. v. Council of City of New Orleans, 491 U.S. 350, 365 (1989). Thus, the interests of the state in the particular action brought by Metro against BBC are not the focus here, but the focus instead rests upon the interests of the state and Metro in regulating objects and structures, including street furniture, on public rights of way.

As set forth in the preamble to the amendment to the ordinances, Metro amended the ordinances because "the obstruction of public-right-of-ways by objects, structures, street furniture, and other type installations, presents risks of harm to pedestrians and other users of these public locations." Minimizing harm to users of public rights of way is clearly an important interest. Cf. Carroll v. City of Mount Clemens, 139 F.3d 1072, 1075 (6th Cir. 1998) (finding that civil enforcement action brought by city to enforce local housing ordinance requiring rooming houses to have separate bathrooms in each dwelling unit implicated important state interest); Lighthouse Cmty. Church of God v. City of ...

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