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Court ruling OKs ‘offensive’ sign in Boardman

YOUNGSTOWN — The 7th District Court of Appeals has overturned a decision by the Boardman Township Board of Zoning Appeals and a Mahoning County Common Pleas judge that refused to allow a Boardman company to use its name on a sign in front of the business.

The decision written by judges Gene Donofrio and Cheryl Waite said Broke Ass Phone, a smartphone repair business, has a First Amendment right to use its name on its sign. The business is located on U.S. Route 224.

The decision hinged on whether the word “Ass” in the name is “obscene or of immoral character.” The majority on the three-judge appeals panel said it is not, while a judge offering a dissenting opinion said it is.

The appeal was filed by the company after the Boardman Township Board of Zoning Appeals rejected its sign in 2015, and Judge John Durkin of Mahoning County Common Pleas Court affirmed the decision in 2017.

The ruling says the company’s sign is commercial speech, which is protected under the First Amendment as long as it concerns “lawful activity and is not misleading.”

The township’s zoning regulations prohibit signs, billboards or advertising that “contain words or pictures of obscene, pornographic, immoral character or which contain advertising that is false.”

The appeals court agreed that the township has a legitimate interest in preventing township residents from being exposed to objectionable advertising, but “the problem arises here with the word ‘ass,'” the ruling states.

“In this case, the word ‘ass’ must be viewed in context,” the judges said. “It seems clear that the word ‘ass’ as used in the name ‘Broke Ass Phone’ is not at all pornographic.” As for whether it is obscene, the court turned to Merriam-Webster dictionary, which defines obscene as “disgusting to the senses” or “taboo in polite usage.”

The majority said “ass” is “neither obscene nor immoral when used on the sign.” It 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,’ has become commonly used as a slang term to say that the phone is ‘really’ or ‘badly’ broken.”

At the zoning board of appeals meeting in 2015 where the issue was discussed, no member of the public spoke in opposition to the sign. The board then rejected the sign 3-1. A public notice was given before the meeting, and no one “lodged an objection,” the ruling notes.

“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,” the opinion states.

The township’s director and assistant directors of zoning and development attended the meeting but neither one “presented any evidence of being offended by the sign,” the ruling added.

“Simply said, the language used on the sign does not fit into the category of language the restriction was meant to prohibit,” the ruling states.

Judge Carol Ann Robb dissented, giving a few definitions of her own. “Obscene is commonly defined as offensive or disgusting to the senses,” she stated. “Immoral character is ordinarily defined as evil or bad character.”

She stated, “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.”

Jason Loree, township administrator, said the township is reviewing the case “and will determine in the very short term whether we will move ahead with an appeal” to the Ohio Supreme Court.

The company also has a location on state Route 46 in Howland. It has a sign out front with the company’s name on it.

erunyan@tribtoday.com

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