NOT RECOMMENDED F OR FUL L -TEXT PUB L I CATI ON File Na me: 12a0998n.06 No. 11-3166 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT

BEN CH BI L L BO ARD COMPANY, Plaintiff-Appellant,

v. CI TY OF TOL EDO, Def endant- Appellee

. ) ) ) ) ) ) ) ) ) ) ON APPEAL FROM THE UNI TED STATES DI STRI CT COURT FOR THE NORTHERN DI STRI CT OF OH I O

BEFORE: SILE R, DAUG HTREY, and WHITE , Circuit Judges. HELE NE N. WHITE , Circuit Judge. Plaintiff-Appellant Be nch Billboard Company (B BC) appea ls the district court’s g rant of summary judgme nt in favor of the City of Toledo on BB C’s First and Four

teenth Amendment claims challeng ing provisions of an ordinanc e reg ulating “cour tesy benche s.” BB C also appea ls the district court’s g rant of attorney s’ fee s in an amount lower than re quested by

BB C. W e AF F IRM in part and REVERSE i n part

. I. BB C installs “cour

tesy benche s” that display adver tisements on thei r back- rests on public proper ty adjac ent to city streets, particula rly at or near bus stops. For many y ear s, the City of Toledo (the City ) issued permits for the place ment of these benche s near bus stops and other rig hts of way . I n 2007, the Toledo City Council enac ted Ordinanc e 59-07 (Ordina nce) , which amende d Chapter 719 of the Toledo Municipal Cod e (C h ap ter 719). The ordinanc e’s “Summary and Ba ckg round” section states:No. 11-3166

Benc h Billboard C o. v. City of Toledo The Courtesy Be nches are a form of adver tising for the bus bench companies, which also provide a neede d service for the citizens of T o l edo. The curr ent ordinanc e specifie s the permitt ing and pl ace ment of these struc tures along with some g ener al g uidelines but has no lang uag e reg arding the maintenanc e, sanitation, and conditions of the permit. I t is nece ssary to add specific provisions to the code in order to better enfor ce this cha

pter of the code. (Ordina nce, R. 29-1, at 8.) The ordinance sets forth procedure s for the applicati o n , i s s u an ce , and

revoc ation of permits, and allows the City ’s Commi ssioner of Building I nspection and Code Enforc ement (“Commissioner”) to revoke a permit for a violation of Chapter 719 and various other

rea sons, including a decision by the Commi ssioner that the bench is “ prejudicia l to the interests of the g ener al public.” The ordinanc e amende d Toledo Municipal Code Secti o n 7 1 9

. 0 8 to add require ments reg arding the appe ara

nce a nd place ment of the be nches. U nder Sec tion 719.08(a), No bench shall car

ry any political adver

tising or adver

tising of cig are ttes, b ee r o r intox icating liquor, nor shall any adver tisement or sign on any such bench display the words, “STOP,” “L OOK,” “DRI VE-I N,” “ DANGE R,” or any other word or words which mig ht misl ead or

distract tra ffic. ( Id. at 10.) Unde r Section 719.08(e ), Al l bus benche s at all locations shall maintain a trash rec eptac le aff ix ed t o t h e courte sy bench. The rec eptac le shall be capa ble of allowing water and other liquids to pass t hroug h and shall be no smaller than 10 ga llons nor larg er tha n 32 g allons. T he permittee is responsible to see that the trash rec eptac le is emptied on an as neede d basis and that the are a ten fee t in diameter around the bus bench is maintained fre e of litter a

nd debris. ( Id. at 10–11.) Sec tion 719.08(c) r equire s, in releva nt part, that, Be nches shall be kept at all times in a neat, clea n and usable condition and ice, snow, litter and debr is sha ll be remove d from the benche s and the vicinity there of in such a manne r that ea ch benc h shall be ac cessible a t all times.

-2-No. 11-3166

Benc h Billboard C o. v. City of Toledo ( Id. at 10.) BB C owns 299 courte sy benche s in Toledo. I n Fe bruar y 2007, the City wrote letters to BB C and Affor d ab l e Be nch Adver tising Co. (Aff

ordable Be nch), another owner of courte sy benche s, advising them that bench permits would be reg ulated under the new ordinanc e. When BB C soug ht
to rene w permits for its benc hes the following month, the Cit y informed B BC that its benche s did
not comply with the ordinanc e and that its permits would not be rene wed. The letter also informed BB C that its benches would be “ subjected to re moval.” Affor dable Be nch was g rante d permits for 267 benche s, even though some of their benche s did not comply with the ordinanc e beca use they did not have trash rec eptac les aff ix ed to them. The Toledo Reg ional Transit Authority (TARTA) , a publicly -owne d-and- o p erated bus service , also p l ac es co v er ed shelters containing benche s at a number of its bus stops. Those shelters do not contain adve rtising a

nd are not reg ulated by

Chapter 719. BB C broug ht suit ag ainst the City , challengin g s ev er al provisions of the ordinanc e as violative of BB C’s Fr ee Speech and Equal Protection rig hts under the Fir s t an d Fo urtee nth Amendments of the United States Constit u t i o n , an d bring ing a state law claim for tortious interfe renc e with economic rela tionships. After BB C and the City filed cross-motions for summary judgme nt, the d i s t ri ct court g rante d partial summary judgme nt for BB C, ruling that the City ’s prohibition on political speec h violated the First Amendment, and that the Commi ssioner’s power to revoke permits for benche s deeme d “pre judicial to the interest of the g ener al pu b l i c” was unconstitutionally vag ue. The district court found that both provi sions wer e sever able from the

rema inder of Chapter 719 and enjoined the City from enfor cing those portions of the ordinanc e. On -3-No. 11-3166

Benc h Billboard C o. v. City of Toledo BB C’s rema ining claims, the district court g rante d summary judgme nt f or the City , ruling that the

o rd i n ance ’s ban on the use of the words “stop,” “look,” “drive -in,” and “dang er,” and i t s require ments that trash rec eptac les b e aff ix ed to benche s and emptied when nece ssary , and that benche s be cle are d of ice , snow, litter, and debr is, did not vi olate B BC’s c onstitut ional rig hts. BB C then moved for an awa rd of attorney s’ fee s under 42 U.S.C. § 1988(b), as the preva iling party in a 42 U.S.C. §1983 action. The district court g rante d that motion, but awa rded less than the
amount reque sted by BB C. After the district court g rante d summary judgme nt for the City on BB C’s

rema ining c laims, BB C tim ely appea led. II. This Court revie ws de novo a district c ourt’s g rant of summary judgme nt. ACLU of Ky. v. Grayson Cnty. , 591 F.3d 837, 843 (6th Cir. 2010). Summary judgme nt is proper wher e no g enuine dispute of materia l fac t exis ts and the moving party is entitled to judgme nt as a matter of law. Fe d. R. C i v . P. 56(a)

. I n revie wing a g rant of summary judgme nt, this Court draw s all rea sonable infere nces in favor of the nonmoving party

. Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 587 (1986). A. BB C first arg ues that the district cour t er re d i n co ncluding that the ban on the use of the

wo rds “stop,” “look,” “drive-in,” “dang er,” and other words that might mi slead or distract traffic, did not violate BB C’s First Amendme nt rig hts. “B illboards and other visual signs, it is clea r, repr esent a medium of expression that the Fr ee Speech Clause has long protec ted.” Prime Media, Inc. v. City of Brentwood, Tenn. , 398 F.3d 814, -4-No. 11-3166

Benc h Billboard C o. v. City of Toledo 818 (6th Cir. 20 0 5 ). Bu t unlike oral speec h, such signs “take up space and may obstruct views, distract motorists

. . . and pose other problems that leg itimately call for reg ulation.” Id. (citing City of Ladue v. Gill eo , 512 U.S. 43, 48 (1994))

. The pa rties ag ree that the ordinance’s ban on cer tain words on courte sy bench adver tisements const itutes a content-ba sed restric tion on commerc ial speec h, which is acc orded less protec tion than other constitutionally g uara nteed expression. Central Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n of New Y o rk , 4 4 7 U.S. 557, 563 (1980). The Supreme Court has set out a four- part inquiry to deter mine whether such restric tions violate the First Amendment: At the outset, we must [(1)] deter mi n e whether the expression is protec ted by the First Amendment. For commerc ial speec h to c ome within that provision, it at least must conce rn lawful activity and not be misleading

. Next, we ask whether [(2)] the asser ted g overnme ntal interest is substantial. I f both inquiries y ield positive answe rs, we must [(3)] deter

mine whether the reg ulation direc tly advanc es the g overnme ntal interest asser

ted, and [(4)] whether it is not more extensive than is nece ssary to serve that interest. Id. at 566. The City car

ries the burden of justify ing the restric tion it seeks to impose. Edenfield v. Fane , 507 U.S. 761, 770 (1993) (invalidating as unconstitutional a state rule prohibiting CPA’s from eng ag ing in direc t, persona l solicitation of potential clients). “This burden is not satisfied by mere specula tion or conje c ture; rathe r, a g overnme ntal body seeking to sustain a restric tion on commerc ial speec h must demonstrate that the harms it rec ites are rea l and that its restric tion will in fac t alleviate them to a mater ial deg ree .” Id. at 770–71. The parties ag ree that the speec h reg ulated is lawful and not misleading

. BB C conce des that traff ic safe ty is a rec og nized g overnme ntal interest, but arg ues that the City cannot establish a substantial g overnme ntal interest in traff ic safe ty beca

use “it has n o t r e g

ulated signa g e on and around -5-No. 11-3166

Benc h Billboard C o. v. City of Toledo its rig ht of way s in a manner that would allow it to asser t that the four words prohibited by Section 719.08(a) are more distracting than other signa g e and there fore unsafe .” (B BC Br

. at 14.) Fur ther, BB C arg ues that the ordinanc e’s failure to reg ulate adver tisements on other structure s on or abutting its sidewa lks, or to r eg ulate adver tisements on courtesy

benche s that do not contain the prohibited words, rende rs the ordinance s o u n d er i nclusive that it does not direc tly advanc e the City ’s stated interests. Howeve r, so long as the ordinanc e direc tly advanc es a g overnme nt’s substantial interests and is draw n narr owly , the fac t that it is underinc lusive does not rende r the interests insubstantial or the ordinanc e otherwise violative of the First Amendment. See Metrome dia, Inc. v. City of San Diego , 453 U.S. 490, 511 (1981) (conc luding that a ban on outdoor adver tising signs direc tly advanc ed the stated objectives of traff

ic safe ty and aesthe tics, and that fac t was not altere d beca use the ordinanc e exempted “ on site” signs that are located at the business being adver tised). As the Supreme Court

n o t ed in Metrome dia , a city may believe that cer tain ty pes of adver

tising “pre sent[] a more acute problem” than other ty

pes of adver

tising, and may decide that in “limited instance[s]

. . . its interests should y ield.” Id. at 511-12. BB C also arg ues that the City has not met its burden to “come forwa rd with some quantum of evidenc e, bey ond its own belief in the nece ssity for reg ulation, that the harms it seeks to reme dy

are concr ete and that its reg ulatory reg ime advanc es the stated g oals.” Pagan v. Fruchey , 492 F.3d 7 6 6 , 771 (6th Cir. 2007) (citing Edenfield , 507 U.S. at 770-72). I n Pagan , the ordinanc e at issu e prohibited the parking of vehicles on streets with the purpose of display ing them for sale. Id. at 769. The city asser

ted an interes t i n traff

ic safe ty and aesthe tic conce rns, but its only evidenc e that the

-6-No. 11-3166

Benc h Billboard C o. v. City of Toledo reg ulation direc tly advanc ed thos e goals was the pol ice chief’s af fi d av i t containing a “conclusory articula tion of g overnme ntal interests,” which we deeme d “simple conjec ture” that was “of exactly the ty pe deeme d insufficient by the Supreme Court in Edenfield .” Id. at 773. I n deter mining whether the city had car

ried its burden, we declined an invitation to adopt a standard of “obv i o u s n es s” or “common sense,” instead requiring “ some evidenc e to establish that a speec h reg ulation a ddresse s actua l harms with some basis in fac t.” Id. at 774 (e mphasis in origina l). Notably , howeve r, we rec og nized that such a showing was established in Metrome dia , wher e

a plurality of the Supreme Court noted the fre quency with which local g overnme nts had place d—and
courts had upheld—re strictions on billboards. Id. at 774-75 (citing Metrome dia , 453 U.S. at 509). Dra wing on that history of billboard reg ulation, the Supreme Court concluded , “[ w] e likewise hesitate to disag ree with the acc umulated, common-sense judgme nts of local lawmake rs and of the many r e v ie wing courts that billboards are rea l and substantial hazards to traff ic safe ty .” Metrome dia , 4 5 3 U. S

. at 509. Thus, in the context of outdoor billboard reg ulation, “ Metrome dia looked to its

own substitut e for t h e s o rt of evidenc e Edenfield require s—the collective judgme nt of many leg islative and judicial dec isionmakers.” Pagan , 492 F.3d a t 775. I n Pagan , on the other hand, no simil ar substitut e existed to “support[] the conc lusion that restric tions place d on ‘F or Sale’ signs posted on vehicles addre ss concr ete harms or mat er i al ly advanc e a g overnme ntal interest.” Id. BB C c ontends that this c ase is like Pagan beca use the City has not offe red evidenc e such as “studies, repor ts, survey s or even complaints” to establish that the prohi b ited words are distracting or misleading

. (B BC Br

. at 16.) The only evidenc e the City has offe red to establish that the ordinanc e advanc es its stated g oals is the Commi s s i o ner’ s deposition -7-No. 11-3166

Benc h Billboard C o. v. City of Toledo testimony that he finds the signs distracting

. Howeve r, the City arg ues, and the district court found, 1 that this case is g overne d by Metrome dia , beca use “[t] he rationale

— the risk of distracting drivers—f

or permitting local g overnme nts to re gu l at e b illboards for traff ic safe ty purposes is the

same for bench billboards. That risk justifies the reg ulation ’s p rohi bition ag ainst use of cer tain words . . . .” ( Orde r, R. 44, at 18–19.) The district court corr ectly conclude d that the ordinanc e in this case is materia lly indisti ng uishable from that in Metrome dia

. I n both case s, the statutes s eek to reg ulate outdoor adver tisements intended to attrac t—and distract—the attention of drivers. That bench billboards are g ener ally much s maller than overhe ad bil lboards is of l ittle rele vance beca use t hey are p o s i t ioned much closer to passing traff ic. Acc ording ly , the City met its burden at the third prong of the Central Hudson inquiry by relying on the Supreme Court’s finding in Metrome dia that “the acc umulated,

common-sense judgme nts” of local lawmake rs and revie wing courts h ave established that “billboards are rea l and substantial hazards to traff ic safe ty

. ” 4 5 3 U. S. at 509. That finding may substitut e for the independe nt quantum of evidenc e that the City would otherwise have to put forth
to establish that its reg ulatory reg ime addre ss es a concr ete harm, Pagan , 492 F.3d at 775, and there fore we ne ed not dec ide whethe r the City would have me t its burden to do so.

I n resp o n s e to questions from opposing counsel, Commi ssioner Z ervos testified that he 1 would find eac h of the prohibited words distracting

. He also testified that, in compar ison with other signs that appea

r along roads g ener ally , “[w]hen one considers that these are on courte s y b en ches in an urban environment, where traff ic i s more stop and go as opposed t o suburban or rura l are as, a distraction in the latter case s is minute, but in an urban are a, wher e bus stops a nd bus transits are require d, they

are far more da ng erous.” (Z ervos De p., R. 30, at 56–57.)

-8-No. 11-3166

Benc h Billboard C o. v. City of Toledo Under the fourth Central Hudson prong , “the rele vant question is whether the speec h restric tion is narr owly tailored; that is, we must deter mine whether the speec h restric tion at issue is

more extensive than is nece ssary to serve the as s er t ed i n t erests.” Pagan , 492 F.3d at 771 (citing Thompson v. W

. States Med. Ctr. , 535 U.S. 357, 367 (2002) (interna l quotation marks omitted)). The tailoring inquiry “does not require a ‘lea st restric tive means’ analy sis.” Id. (citing Loril lard Tobacco Co. v. Reilly , 533 U.S. 525, 556 (2001))

. But there must be a “re asonable fit betwee n the leg islature’s ends and the means chosen t o ac complish those ends, a means narr owly tailored to achie ve the desired objective.” Id. (citing Loril lard Tobacco , 533 U.S. at 556 (alter ation omitted)). BB C arg ues that this prong is not met beca use the choice of the words “stop,” “look,” “drive

in,” and “dang er” is arbitra ry and underinc lusive. BB C does not arg ue that t h e o rd i nance is overinc lusive. As in Metrome dia , howeve r, the ordin a n c e r e f le cts the City ’s rea sonable decision that bench adver

tisements containing words that ar e misleading or distracting prese nt a more acute problem than other kinds of adver tisements, and we will not reje ct that judgme nt. Metrome dia , 453 U.S. at 512. The ordinanc e is “not more extensive than is nece ssary ” to serve the interest of traff ic safe ty

. Acc ording ly , we find that the ordinanc e’s prohibition on the use of the words “stop,” “look,” “drive -in,” “dang er,” and other words that might mislead or distract traff ic on courte sy benche s, does not violate BB C’s Fre e Speec h rig hts under the F irst Amendment. B. BB C next challeng es as violative of its First Amendment rig hts the ordinanc e’s require ments that a trash rec eptac le be aff ix ed to eac h bench and that the are a around eac h bench be kept fre e from ice, snow, litter, a

nd debris. -9-No. 11-3166

Benc h Billboard C o. v. City of Toledo “Time, place , an d m an n er” restric tions such as these “ar e valid provided [1] that they are justified without ref

ere nce to the content of the reg ulated speec h, [2] that they are narr owly tailored [3] to serve a signific ant g overnme ntal interest, and [4] that they leave open ample alt er n at i ve channe ls for communication of the information.” Prime Media , 398 F.3d at 818 (citations omitted). 2 Her e, the ordinanc e’s provisions reg arding bench maintenanc e meet this test. BB C does not dispute that the provisions are content-ne utral, that th e Ci ty ’ s a s s e r te d in te r ests in ensuring pedestria n safe ty and aesthe tics are signific ant, see Metrome dia , 453 U.S. at 507-08, or t h at t h e re strictions leave open ample alterna tive channe ls for communication of information, see Prime M e d ia , 3 9 8 F

. 3 d
at 819 (holding that billboard reg ulations “lea ve open a mp le a lt e r n a tive communication beca

use they permit billboards that satisfy the heig ht and size restrictions . . . and do not aff ect a ny individual’s fre edom to exercise the r ight to spea k and to distribute literature ” in the ar ea r egulated). Finally , a reg ulation is narr owly tailored if it “promot e s a substantial g overnme nt interest that would be achie ved less eff ectively absent the reg ulation,” and it does not “burde n substantially more

s p ee ch t han is nece ssary to further the g overnme nt’s leg itimate interests.” Id. The g overn m en t entity “may not reg ulate expression in s u ch a m anner that a substantial portion of the burden on

BB C asser

ts without elabor ation or support that the district court should have analy zed the 2 ordinanc e’s bench maintenanc e reg ulations under the four- part intermediate scrutin y test under Central Hudson , 447 U.S. at 566. Howeve r, B BC does not arg ue that these require ments reg ulate purely commerc ial speec h of the sort go v er n ed by Central Hudson

. See Cleveland Area Bd. of Realtor s v. City of Euclid , 88 F.3d 382, 386 (6th Cir. 1996) ( Central Hudson test is inappropria te for ordinanc e that applies to both commerc ial as well as non-commer cial speec h). I n any event, the test for time, place , and manner restric tions is “substantially simil ar” to the test articula ted in Central Hudson

. See Prime Media , 398 F.3d at 824 (citing Loril lard Tobacc o Co. v

. Reilly , 533 U.S. 525, 554 (2001))

. -10-No. 11-3166

Benc h Billboard C o. v. City of Toledo speec h does not serve to advanc e its g oals,” but “[s] o long as the means chosen are not substantially broade r than nece ssary to achie ve the g overnme nt’s interest

. . . t h e regula tion will not be invalid simply beca

use a court conclude s that the g overnme nt’s interest could be adequa tely serve d by some less-spee ch-r estrictive alterna tive.” Id. at 819-20 (quoting W ard v. Rock Against Racism , 491 U.S. 781, 799-800 (1989) ). BB C arg ues that the City has not pointed to evidenc e that the courte sy benche s are the cause of the litter, ice, or snow. BB C also notes that the City could not quantify the number of complaints that it rec eived from the public reg arding litter around the are a of the benche s. Fur ther, BB C arg ues that the reg ulation is underinc lusive beca use the public will continue to litter at TARTA bus shelters and other locations, a harm which the ordinanc e will not alleviate. Finally , BB C asser ts that if it is forc ed to compl y with the ordinanc e, it will be cost-prohibitive for BB C to continue opera ting in Toledo, thus rende ring the ordinanc e a de facto ban on an entire class of constitutionally -protec ted speec h. Despite these objections, the district court was corr ect in finding that the reg ulations are

narr owly tailored. I n the absenc e of the ordinanc e, the City ’s interests in ensuring pedestria n safe ty and litter-fre e streets would be achie ved less eff ectively

. Prime Media , 398 F.3d at 8 1 9

. C i t y officia ls testified that they rec eived sever al complaints reg arding the condition of courte sy benche s and the are a around the benche s. The fac t that the City ch o se reg ulations that addre ss its stated interests in some respe cts and not othe rs does not r ender the ordinanc e insuffic iently tailored. See Prime Media , 398 F.3d at 821 (noting that this Court has previously found that “an incomplete (y et content-ne utral) ban nonetheless direc tly advanc ed leg itimate interests”) (citing W heele r v. Comm’r -11-No. 11-3166

Benc h Billboard C o. v. City of Toledo of Highways, Com. of Ky. , 822 F.2d 586, 595 (6th Cir. 1987)). BB C’s arg ument that the ordinanc e is eff ectively a ban on an entire class of constitutionally -protec ted speec h, beca use BB C would find it c ost-prohibitive to opera te under the ordinanc e, is also unavailing

. BB C cites City of Cincinnati

v. Discove ry Network, Inc. , 507 U.S. 410, 430 (1993), for the proposition that “Toledo has basica lly

enac ted an Ordinanc e that bans “a whole class of Constit utionally -protec ted speec h.” (B BC Br

. at 24.) Howeve r, in that case , Cincinnati order ed the remova l of plaintiff’s newsra cks from sidewalks under a swee ping ordinanc e that banned from “any public place ” the distributi o n or sale of

“ c o mm e r c ial handbills,” define d broadly as any printed or written matter that adver ti s e d me r c h a

n d is e

or d i rected attention to a business or for- profit event. Id. at 414. I n holding the ordinanc e unconstitutional, the Supreme Court, utiliz ing the standards set forth in Central Hudson for contentb a s ed commerc ial speec h, found that the reg ulation bore “no rela tionship whatsoever ” to the a s s e r te d interests of safe ty and aest h et i cs. Id. at 424. Her e, on the other hand, the ordinanc e is contentneutra l, the reg ulation is narr owly -tailored to the City ’s asser ted interests, and the ordinanc e at issue is not nearly

as swee ping a s a total ban on wr itten commerc ial speec h in public. 3 Acc ording ly , we conclude that the ordinanc e’s require ments that trash rec eptac les be aff ix ed
to benche s and that the are a ar o u n d b en ches be kept fre e of ice, snow, litter, and debris, do not violate B BC’s F irst Amendment rig hts.

BB C cites no authority for the proposition that its own inability to operate profitably under 3 the ordinance render s the ordinance a de facto b an o n an entire class of constitutionally -protec ted speec h of the sort addre ssed in Discove ry Network , 507 U.S. at 430. Nor does the rec ord show that the ordinanc e is so burdensome as to rende r courte sy benche s impossibl e to provide, as at least one other company , Affor dable Be nch, h as b egun comply ing with the ordinanc e by attaching trash rec eptac les to its benches. -12-No. 11-3166

Benc h Billboard C o. v. City of Toledo C. BB C arg ues that the ordinanc e violates its Equal Protection rig hts by trea ting BB C benche s differ ently than benche s at TARTA bus shelters and newsrack s allowed on the City ’s sidewalks, neither of which are cover ed by the ordinanc e. Fur ther, BB C arg ues that the law is being enfor ced differ ently with respe ct to benche s owned by another courte sy bench company , Affor dable Be nch. The Equal Protection Clause prohibits states from making distinctions that either (1) burden

a fundame ntal rig ht, (2) targ et a suspect classification, or (3) intentionally trea t one differ ently from others simil arly situated without any rational basis for the differ ence . Radvansky v. City of Olmsted Falls , 395 F.3d 291, 312 (6th Cir. 2005). Where, as here , a plaintiff proce eds under the third theory , it must prove that it has been trea ted differ ently from s i m i l ar ly -situated individuals, and that the g overnme nt’s actions lacke d any rational basis. See Club Italia Socce r & Sports Org. Inc. v. Charter T w p . o f S helby, Michigan , 470 F.3d 286, 298 (6th Cir. 2006), overruled on other grounds a s recognized by

Davis v. Prison He alth Servs ., 679 F.3d 433 ( 6th Cir. 2012). T o es t abli sh that it was trea ted differ ently from simil arly situated entities, BB C must demonstrate that it and the entities who wer e trea ted differ ently wer e simil arly situated in all materia l respe cts. See TriHealth, Inc. v. Bd. of Comm’rs, Hamilton Cnty., Ohio , 430 F.3d 783, 789–90 (6th Cir. 2005). The district court corr ectly found that BB C is simil arly situated to other courte sy bench

co m p an i es and to TARTA, but not to newsra cks, beca use unlike newsra cks, the others provide 4

BB C incorre ctly asser

ts that the district court found t h at T AR TA and BB C wer e not 4 simil arly situated. I n fac t, the district court held that they wer e simil arly situated, but that the City ’s decision to trea t TARTA and B BC diffe rently had a r ational basis. ( See Orde r, R. 44, at 26.) -13-No. 11-3166

Benc h Billboard C o. v. City of Toledo “loca tion[ s] wher e people cong reg ate while waiting for the bus, the reby potentially incre asing the
amount of litter prese nt.” (Orde r, R. 44, at 24.) I n claiming that the district court err ed in ref using to find BB C similarly situated to pr oviders of newsra cks, BB C a rg ues that the “similarly situated” inquiry sho u l d re fer to the form of adver tising rathe r than the entities that own them. Howeve r,

n othing in the district court’s rea soning sug g ests that it examined only the char acte ristics of the

owner s of the adve rtising to the ex clusion of t he form of advertising. On the contra ry , the district court’s rea soning sug g ests that it took into acc ount both the location and the form of adver tising in deter mining that newsra cks and benche s, and thus the entities that place eac h in the public rig ht of way , are not simi larly

situated for pur

poses of the Equa l Protection Clause. Under rational bas i s revie w, despite differ ential trea tment of BB C and simil arly situated entities, the reg ulation must be sustained “if any conce ivable basis rationally supports it.” TriHealth , 430 F.3d at 790. A defe ndant “nee d not offe r any rational basis so long as this Court can conce ive of one.” Club Italia Soccer & Sports Org. , 470 F.3d a t 299. The City asser

ts that the ordinanc e trea ts TARTA differ ently from BB C beca use the former is a taxpay er- funded public transporta tion sy stem that incidentally provides benche s at its bus stops for the benef

it of its ri d er s , wh er ea s BB C is a for- profit adver tising company . The district court

corr ectly conclude d that a rational basis exis ts for t h e d i fferential trea tment beca use, “[g]iven the importance of low-cost public transporta tion, the city rationally can impose lesser restric tions on the public operator of its transit sy stem than on others not in t h e business of providing a simil arly essential public ser

vice.” (Orde r, R. 44, at 26–27.)

-14-No. 11-3166

Benc h Billboard C o. v. City of Toledo Fur ther, a rational basis exis ted to issue permits to Affor dable Be nch beca use, unlike BB C, it had beg un to comply

with the ordinanc e by

attaching trash rec eptac les to its benche s. Although incomplete, Affor dable Be nch’s eff orts at compliance provide a rational basis fo r the City ’s differ ential trea tment of Affor dable Be nch and BB C. Acc ording ly , BB C cannot establish an equal protec tion violation. III. Attor neys’ F ees BB C claims that, in reduc ing its initia l re q u est for $132,532 in attorney s’ fees, t he dis trict
court err ed in: (1) reduc ing attorney s’ fee s based on the litigation’s partial succe s s , (2) reduc ing
atto rney s’ fee s based on the unrea sonablene ss of BB C’s quarte r-hour billing incre ments, and (3) reduc ing th e fee awa

rd based on one attorney ’s aff idavit descr ibing his firm’s assistance on the fede ral matter as “minimal.” (B BC Br

. at 29–32.) This Court revie ws a district court’s awa rd of attorney s’ fee s under 42 U.S.C. § 1988 for an abuse of discretion. Sensations, Inc. v. City of Grand Rapids , 526 F.3d 291, 302 ( 6th Cir. 2008). A. Partial Succe ss Where “a p l ai n t i ff has achie ved only partial or limit ed succe ss, the product of hours

rea sonably expended on the litigation as a whole times a rea sonable hourly rate may be an excessive amount.” Hens l ey v. E cke rhart , 461 U.S. 424, 436 (1983). Howeve r, a court should not reduc e attorney fee s “base d on a simple ratio of succe ssful claims to claims raised

. ” T hurman v. Y

ellow Freight Sys., Inc. , 90 F.3d 1160, 1169 (6th Cir. 1996). Where a plaintiff’s claims for relief involve

a com m o n co re o f fac ts or are based on rela ted leg al theories, the lawsuit “ca nnot be viewed as a

-15-No. 11-3166

Benc h Billboard C o. v. City of Toledo

s eries of discrete claims. I nstead the district court should focus on the signific ance of the overa l l relief obtained by

the plaintiff.” Hensley , 461 U.S. at 435. Her e, BB C alleg ed three First Amendment violations, an Equal Protection claim, and a statelaw claim for tortious interfe renc e with economic rela tionships, an d p re v ail ed on two First Amendment claims. Those claims wer e not all based on the same l ega l t h eo ri es , as some of the provisions of the ordinanc e that BB C soug ht to strike down wer e upheld, while others wer e struck down. The district court acc ording ly found that BB C “re ceive d a ‘g ood’ but not an ‘excellent’ result in its § 1983 claims.” (Orde r, R. 64, at 12.) Taking into acc ount BB C’s limit ed succe ss and the fac t that the unconstitutional provisions wer e sever able, the district court decide d to reduc e the attorney fee awa rd by 25% to ref

lect partial succe ss. I n making such a finding , we conclude that the district court did not abuse its discre tion. B. B illing I ncre ments Although the City did not raise the issue with t h e d i s t ri ct court, the district court made a further reduc tion in the attorney s’ fee s awa rd on the basis that BB C’s counsel, Mr. Holzapfel, kept his time rec ords in quarte r-hour incre ments, including for tasks that the district court believed wer e unlikely to occupy a full fiftee n minutes of his time. BB C arg ues that the district court err oneously held that quarte r- h o u r t imekeeping is per se unrea sonable. Howeve r, the district court noted that

some courts have sug g ested billing in quarte r-hour incre ments i s n o t per se unrea sonable, but

never theless found such bi lling inappropriate in a § 1983 case beca use of its tendenc y to g ener ate bills t h at are fiftee n perc ent highe r than bills based on tenth-of- an-hour billing incre ments. Acc ording ly , the district court split the diffe rence and reduc ed counsel’s hours by 7.5 perc ent. -16-No. 11-3166

Benc h Billboard C o. v. City of Toledo Be cause “[i] t rema ins for the district court to deter mine what fee is ‘re asonable ,’” Hensley , 461 U.S.
at 433, and the district court has discretion to reduc e an awa rd of fee s “whe re the documentation of hours is inadequa te,” id. , the district court did not abuse its discretion in reduc ing the attorney s’ fee s

awa rded on the basis of quar

ter-hour billing incre ments. C. Fee s of Toledo Counsel Finally , BB C a sserts that the district c ourt improperly eliminated 13.80 hours of attorney s’ fee s g ener ated by local counsel Mr. Hey wood by misconstruing his aff idavit to conclude that those hours wer e not relat ed t o i nstant action. The City does not respond to or dispute this claim on appea l. Acc ording ly , we reve rse the district court’s reduc tion of attorney s’ fee s with respe ct to the 13.80 hours billed by

local counse l Hey

wood. IV. Conclusion For the fore g oing r easons, we AF F IRM in part and REVERS E in part the judg ment of the district court.

-17-