Road Space Media, LLC v. Miami-Dade County

United States District Court

for the

Southern District of Florida

Road Space Media, LLC, Plaintiff, )

)

v. )

Civil Action No. 19-21971-Civ-Scola

)

Miami Dade County, Defendant. )

Order on Defendant’s Motion to Dismiss

This matter is before the Court on Defendant’s motion to dismiss the

Plaintiff’s Second Amended Complaint. (ECF No. 34.) The Plaintiff filed a

response (ECF No. 35) and the Defendant replied (ECF No. 39). Upon review of

the record, the parties’ briefs, and the relevant legal authority, the Court grants

in part and denies in part the Defendant’s motion. (ECF No. 34.)

I. Background

Plaintiff Road Space Media, LLC (“Road Space”) is a company that

specializes in developing and operating signs that are used by businesses for

commercial and noncommercial messages. (Second Amended Complaint at ¶ 1,

ECF No. 31.) Road Space reached agreements with property owners to post new

signs on several parcels in Miami Dade County. (Id. at ¶ 6.) Pursuant to these

agreements, Road Space submitted 18 sign permit applications to the County on

August 9, 2018. (Id. at ¶ 9.)

According to the Plaintiff’s complaint, all 18 applications were approved by

the structural and building department but denied by the sign department. (Id

at ¶¶ 12-14.) The County denied the applications based solely on the content of

the proposed signs. (Id. at ¶ 15.) Road Space then contacted the County to ask

about the denials and inquire about the proper procedure to appeal the denials.

(Id. at ¶ 20.) On September 11, 2018, Road Space sent a letter to the County

requesting an appeal because its diligent research of the Sign Code and other

County documents provided no guidance on the proper appeal procedure. (Id. at

¶¶ 22-24.)

After finally communicating with the County and being pointed in the right

direction, Road Space delivered 18 appeal packets to the County on February 4,

2019. (Id. at ¶ 39.) Road Space submitted the appeal fee of $1,100.81 but was

later informed that this only covered one appeal. (Id. at ¶¶ 39-40.) The total fee

for 18 appeals was $23,107.32. (Id. at ¶ 43.) The County informed Road Space

that the appeals could not be accepted for failure to pay the required fee and

various other shortcomings outlined in a letter dated October 19, 2019. (Id. at

¶¶ 42-45.) According to the Plaintiff, the reasons outlined by the County in its

letter are not based on the Sign Code. (Id. at ¶ 44.)

Road Space now sues the County challenging the constitutionality of the

sign permitting scheme, the County’s Sign Code, the appeals process, and the

appellate fee. The County moves to dismiss Road Space’s complaint in its

entirety.

II. Legal Standard

A court considering a motion to dismiss, filed under Federal Rule of Civil

Procedure 12(b)(6), must accept all allegations in the complaint as true,

construing them in the light most favorable to the plaintiff. Pielage v. McConnell,

516 F.3d 1282, 1284 (11th Cir. 2008). Although a pleading need only contain a

short and plain statement of the claim showing that the pleader is entitled to

relief, a plaintiff must nevertheless articulate “enough facts to state a claim to

relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570

(2007). Faced with a motion to dismiss, a court should therefore “1) eliminate

any allegations in the complaint that are merely legal conclusions; and 2) where

there are well-pleaded factual allegations, ‘assume their accuracy and then

determine whether they plausibly give rise to an entitlement to relief.’” Am. Dental

Ass’n. v. Cigna Corp., 605 F.3d 1283, 1290 (11th Cir. 2010) (quoting Ashcroft v.

Iqbal, 556 U.S. 662, 662 (2009)). “Regardless of the alleged facts, a court may

dismiss a complaint on a dispositive issue of law.” Surgery Center of Viera, LLC

v. Southeastern Surveying and Mapping Corp., No. 17-cv-754-orl-40TBS, 2018

WL 922202, at *3 (M.D. Fla. Jan. 31, 2018) (citations and quotations omitted).

III. Analysis

Each of Plaintiff’s counts includes facial and as applied challenges to the

County’s Sign Code. “When a statute is challenged as facially invalid, a court

may entertain such a challenge where every application of the challenged

provision may create an impermissible risk of suppression of ideas.” Café Erotica

of Fla., Inc. v. St. Johns Cty., 360 F.3d 1275, 1281 (11th Cir. 2004). “It is the

most difficult challenge to mount successfully because it requires a defendant to

show that no set of circumstances exists under which the law would be valid.”

United States v. Ruggiero, 291 F.3d 1281, 1285 (11th Cir. 2015) (quotations and

citations omitted). “As applied claims attack statutes that are legal as enacted,

but have been applied in an arbitrary and capricious manner.” Jackson v.

Okaloosa Cty., 21 F.3d 1531, 1541 n.16 (11th Cir. 1994). “In order for an as

applied claim to be ripe, the plaintiff usually must demonstrate that the

regulation has been applied to him.” Id. Although the Plaintiff does not

distinguish between its as applied and facial challenges, the Court will address

each in turn.

A. Count I – Whether the County’s permitting mechanism is

unconstitutional on its face and as applied to Road Space based on

its lack of procedural safeguards

Count I of the Plaintiff’s complaint challenges the constitutionality of the

Sign Code based on its failure to set reasonable time limits on a County official’s

decision-making power. (ECF No. 31 at ¶ 75.) Under the Sign Code, if a County

official has not made a decision regarding a sign permit application in 30 days,

the application is automatically denied. (Id. at ¶ 72.) The Plaintiff claims that the

automatic denial does not ensure prompt resolution of a sign application and is

therefore unconstitutional. (Id. at ¶¶ 76-78.) In response, the Defendant argues

that the automatic denial provision has been upheld by the Eleventh Circuit and

is therefore constitutional. (ECF No. 34 at 8.)

As an initial matter, the automatic denial provision has never been applied

to Road Space. Indeed, Road Space asserts that its authorized agent, William

Benham, received a series of emails from the County informing him that review

of the applications had been completed. (ECF No. 31 at ¶ 11.) Mr. Benham

received approvals from the Building and Structural Departments and denials

by the Sign Department. (Id. at ¶¶ 12-14.) Therefore, the Plaintiff’s as applied

challenge to the automatic denial provision is not ripe for the Court’s review. See

Jackson, 21 F.3d at 1541 n.16 (“In order for an as applied claim to be ripe, the

plaintiff usually must demonstrate that he regulation has been applied to him.”);

GeorgiaCarry.Org, Inc. v. Georgia, 687 F.3d 1244, 1255 n.20 (11th Cir. 2012)

(“The Amended Complaint does not state an as-applied challenge. . . [because]

the [law] has not been applied to them.”). Accordingly, Plaintiff’s as applied

challenge in Count I is dismissed.

The Plaintiff, however, may pursue a facial challenge to the automatic

denial provision. “A prior restraint on speech exists when the government can

deny access to a forum for expression before the expression occurs.” Café Erotica

of Fla., 360 F.3d at 1282. The Sign Code requires a permit before erecting a new

sign, “thereby making it a restraint on speech in advance of its occurrence.” Id.

To pass constitutional muster, prior restraints must “(1) ensure that permitting

decisions are made within a specified time period and must (2) avoid unbridled

discretion in the hands of a government official.” Id. (citations and quotations

omitted). To satisfy the first prong, “an ordinance should contain two procedural

safeguards: (1) licensing officials must be required to make prompt decisions,

and (2) prompt judicial review must be available to correct erroneous denials.”

Id. at 1283.

The Plaintiff’s claim in Count I focuses on the “prompt decision”

requirement.1 According to the Plaintiff, the automatic denial of a permit after

30 days does not afford prompt decision making. In Café Erotica, the Eleventh

Circuit upheld an ordinance that gave the County Administrator “thirty days to

deny or approve a fully completed sign application and twenty days to notify the

applicant of any deficiencies. Significantly, if the application is not approved or

denied within the thirty-day period, the sign is deemed denied.” 360 F.3d at 1283

(emphasis added). The Court reasoned that the automatic denial provision

ensured that the County Administrator could not delay the permitting process

indefinitely. Id. Following the precedent established in Café Erotica, this Court

finds that the automatic denial provision does not run afoul of the constitutional

requirement that permitting decisions must be made promptly.

In an effort to distinguish Café Erotica, the Plaintiff argues that the

Eleventh Circuit upheld the automatic denial provision only because it was

coupled with a prompt appeals process. (ECF No. 35 at 5.) The Plaintiff misreads

Café Erotica. The Café Erotica court addressed the appeals process as part of the

“prompt judicial review” prong and never held that together this framework was

acceptable. See Café Erotica, 360 F.3d at 1283. Accordingly, the Court grants

the Defendant’s motion to dismiss Count I.

B. Count II – Whether the County’s appeal mechanism for signs is

unconstitutional on its face and as applied to Road Space because

it lacks procedural safeguards and is unduly discretionary

Count II challenges the “prompt judicial review” requirement as well as the

“no unbridled discretion” requirement. Café Erotica, 360 F.3d at 1283-84. The

Plaintiff asserts that it appealed its sign applications on September 11, 2018 and

has yet to be given a hearing date. (ECF No. 31 at ¶ 85.) Moreover, the Plaintiff

has found itself subject to “an endless series of changing requirements and

delays.” (Id. at ¶ 86.) The Sign Code does not contain standards or guidelines

that the board hearing the appeal is supposed to apply when considering an

appeal. (Id. at ¶ 89.)

In response, the Defendant argues that the Plaintiff misunderstands the

Sign Code and the Zoning Code as a whole. (ECF No. 34 at 9-10.) According to

the Defendant, the Sign Code provides that an applicant may appeal the denial

of a sign permit to the applicable board and such appeal shall be heard at the

1 Although the Plaintiff’s opposition to the motion to dismiss argues that there is

“no guarantee of quick action on sign appeals,” Count I and the majority of the

briefing focuses on the automatic denial provision. (ECF No. 35 at 5.) Therefore,

the Court will not address the appeals process under this section. The appeals

process is the basis for Count II of the complaint.

next regular meeting after notice pursuant to Section 33-310(c). (Id. at 9.) Given

that the Community Zoning Appeal Board (“CZAB”) meets on a monthly basis,

the appeal process is not indefinite and undefined. Moreover, the Defendant

asserts that the “particular code provision or provisions that formed the basis of

the sign-permit denial” would form the basis for the board’s appellate review.

The board simply applies those code provisions and determines whether the

application meets those provisions. (Id. at 12.)

“A motion to dismiss is appropriate only when it is demonstrated beyond

doubt that the plaintiff can prove no set of facts in support of his claim which

would entitle him to relief. For the purpose of a motion to dismiss, the complaint

is construed in the light most favorable to the plaintiff, and all facts alleged by

the plaintiff are accepted as true.” S.M. v. Feaver, No. 03-80567, 2003 WL

22594330, at *2 (S.D. Fla. Oct. 9, 2003) (Hurley, J.) (citations and quotations

omitted). “Furthermore, the threshold is exceedingly low for a complaint to

survive a motion to dismiss for failure to state a claim.” Id.

Based on the Plaintiff’s allegations, it appealed the denial of its sign

permits in February 2019. (ECF No. 31 at ¶ 39.) A County official sent Road

Space an email claiming that the appeal could not be accepted and enumerated

a number of issues with the application. (Id. at ¶ 43.) According to the Plaintiff,

these criteria are not in the Sign Code. Moreover, the appeal could not be

accepted because the Plaintiff failed to pay the appeal fee of $23,107.32. The

additional requirements and fees were “concocted” to delay the appeal because

there is no time frame for appellate review and unlimited discretion exercised by

the County officials. (Id. at ¶¶ 48-50.)

Accepting these allegations as true, the Court declines to dismiss Count

II. Although the Defendant provides a competing interpretation of the relevant

provisions of the Sign Code, the Court must construe the complaint in the light

most favorable to the Plaintiff at the motion to dismiss stage.

C. Count III – Whether the County’s variance mechanism is

unconstitutional on its face and as applied to Road Space because

it lacks procedural safeguards and is unduly discretionary

Count III of the Plaintiff’s complaint asserts a facial and as applied to

challenge to the County’s variance process. (ECF No. 31 at 20.) According to the

Plaintiff, the “variance process indisputably has no time limits.” (Id. at ¶ 96.) And

the variance process for signs “is also unconstitutional because the applicable

standards are unduly subjective.” (Id. at ¶ 98.)

As an initial matter, Road Space admits that it has never applied for a

variance. (Id. at ¶ 95.) Therefore, the Plaintiff’s as applied challenge to the

variance process is not ripe for the Court’s review. See Jackson, 21 F.3d at 1541

n.16 (“In order for an as applied claim to be ripe, the plaintiff usually must

demonstrate that the regulation has been applied to him.”); GeorgiaCarry.Org,

Inc. v. Georgia, 687 F.3d 1244, 1255 n.20 (11th Cir. 2012) (“The Amended

Complaint does not state an as-applied challenge. . . [because] the [law] has not

been applied to them.”). Accordingly, Plaintiff’s as applied challenge in Count III

is dismissed.

With regard to the Plaintiff’s facial challenge, the Defendant argues that

the Plaintiff does not have standing to challenge the variance procedures because

Road Space has not applied for a variance. (ECF No. 34 at 13.) However, Road

Space does not have to apply for a variance to assert a facial challenge. Because

Road Space would be “subject to” these procedures if it applied for a variance, it

has standing to mount a facial challenge. CAMP Legal Defense Fund, Inc. v. City

of Atlanta, 451 F.3d 1257, 1274 (11th Cir. 2006). “That city officials have not yet

exercised their discretion to refuse [plaintiff’s] proposed [activity] is immaterial

because it is the existence, not the imposition, of standardless requirements that

causes [] injury.” Id. at 1275. Road Space “would be subject to these procedural

requirements whenever it submits an application.” Id. at 1274-75. This is

sufficient to confer standing for a facial challenge. Id. Accordingly, the motion is

denied as to the facial challenge in Count III.

D. Count IV – Whether the appeal fees for signs are unconstitutional

Count IV of the Plaintiff’s complaint alleges that the fee of $1,238.74 per

sign ($23,107.32 for 18 signs) plus other “unknown costs” is “not tied to Miami-

Dade’s actual costs.” (ECF No. 31 at ¶ 102.) According to the Plaintiff, the

$1,283.74 does not include the unknown amount of administrative costs for

sending notice to neighboring property owners. (Id. at ¶ 103.) In response, the

County argues that the Plaintiff’s allegations are insufficient to state claim. (ECF

No. 34 at 15.) Upon review, the Court agrees with the County.

To survive a motion to dismiss, the Plaintiff’s allegations must “state claim

for relief that is plausible—and not merely possible—on its face.” Almanza v.

United States, 851 F.3d 1060, 1066 (11th Cir. 2017) (citations omitted). “Under

this standard, threadbare recitals of the elements of a cause of action, supported

by mere conclusory statements, do not suffice.” Id. (quoting Ashcroft v. Iqbal, 556

U.S. 662, 678 (2007)). Here, the Plaintiff does not provide any factual allegations

to support its assertions that the appeal fee is above and beyond Miami-Dade’s

actual costs. The Plaintiff does not assert what it believes would be a more

reasonable fee or what other municipalities charge to administer permitting

applications and appeals. The Plaintiff claims, “only at the highest order of

generality and without any factual development,” that the appeal fees are

unconstitutional. Boyd v. Warden, Holman Correctional Facility, 856 F.3d 853,

871 n.2 (11th Cir. 2017). The Court finds that the Plaintiff’s allegations “appear

to fall short of pushing [its] claim across the line from conceivable to plausible.”

Id. The fact that the “unknown” administrative cost of providing notice to

neighbors is not quantified does not change the Court’s opinion. Some signs may

require notice to a crowded neighborhood, which would naturally cost more than

a sign erected on a highway. Given these variations, it would be almost

impossible for the County to include this as part of the appeal fee. Accordingly,

the Court grants the County’s motion to dismiss Count IV.

E. Counts V, VI, VII, VIII – Whether the Sign Code is unconstitutional

on its face and as applied

The Plaintiff next challenges Counts V-VIII arguing that Road Space does

not have standing to pursue its as applied challenges to specific provisions of

the Sign Code. Count V alleges that the sign applications were denied because

Section 33-82(2) of the Code impermissibly regulates content. (ECF No. 31 at ¶¶

62, 111-13.) Count VI alleges that Section 33-94(g) impermissibly exempts

government-sponsored signs from the Sign Code. (Id. at ¶ 121.) Count VII alleges

that the Sign Code affords County Officials undue discretion. (Id. at ¶¶ 126-128.)

And Count VIII alleges that the Sign Code is unconstitutional because it

establishes a presumption that signs are banned. (Id. at ¶ 132.)

“Standing for Article III purposes requires a plaintiff to provide evidence of

an injury in fact, causation, and redressability.” Rubenstein v. Florida Bar, 69 F.

Supp. 3d 1331, 1338 (S.D. Fla. 2014) (Bloom, J.) (citations and quotations

omitted). “Redressability is established when a favorable decision would amount

to a significant increase in the likelihood that the plaintiff would obtain relief

that directly redresses the injury suffered.” Id. at 1341. “Several federal courts,

including the Eleventh Circuit, have recently concluded that a plaintiff

challenging a sign ordinance cannot demonstrate redressability if the plaintiff’s

permit applications violate unchallenged provisions of the ordinance.” Roma

Outdoor Creations, Inc. v. City if Cumming, 599 F. Sup. 2d 1332, (N.D. Ga. 2009)

(citing Outdoor, LLC v. Clay Cty., Fla., 482 F.3d 1299, 1303 (11th Cir. 2007).

Here, the Plaintiff’s sign applications violated other, unchallenged provisions of

the sign code. All permit applications were denied for failure to comply with

requirements for electrical review of the proposed signs. (ECF No. 34 at 18.) The

applications were also denied for failure to comply with other unchallenged

provisions of the Sign Code, such as the proposed signs were within 600 feet of

an expressway and did not comply with the provisions of an “outdoor advertising

sign.” (ECF No. 11-10 at ¶ 9.) Therefore, a favorable outcome on Plaintiff’s as

applied challenges would not alter the end result: a denial of Road Space’s sign

applications.2 See Roma Outdoor, 599 F. Supp. 2d at 1341. Accordingly, the

Court dismisses the Plaintiff’s as applied claims in Counts V-VIII.

With regard to the Plaintiff’s facial challenges in Counts V-VIII, the

Defendant argues that Road Space’s claims are time barred. According to the

Defendant, the statute of limitations for a facial constitutional challenge to a law

accrues when the law is enacted. (ECF No. 34 at 20.) The Plaintiff’s claims are

brought under 42 U.S.C. § 1983 and therefore governed by Florida’s four-year

statute of limitations. See Chappel v. Rich, 340 F.3d 1279, 1283 (11th Cir. 2003).

According to the Defendant, because the Sign Code was passed in 2007, the

Plaintiff’s claims are now time barred.

The County’s argument relies on the Eleventh Circuit’s holding in Hillcrest

Prop., LLC v. Pasco Cty., 754 F.3d 1279 (11th Cir. 2014). In Hillcrest, the plaintiff

asserted a facial due process challenge against a zoning ordinance that required

landowners whose property encroaches on a highway to convey in fee simple a

portion of their property as a condition for receiving a development permit from

the County. Id. at 1281. The Eleventh Circuit, for the first time in Hillcrest,

addressed whether the statute of limitations on a facial due process claim

accrues at the time the ordinance is passed or when the landowner is subjected

to the ordinance. Id. at 1281-82. The Court analogized to the Ninth Circuit’s

reasoning regarding a constitutional takings claim in Levald, Inc. v. City of Palm

Desert, 998 F.2d 680 (9th Cir. 1993). “The Ninth Circuit reasoned in Levald that

in the context of a facial takings claim, the harm occurs immediately upon, and

because of, the statute’s enactment: the property value depreciates and a taking

occurs as soon as the statute goes into effect. Thus, the injury necessarily occurs

upon the statute’s enactment.” Hillcrest, 754 F.3d at 1282. In Kuhnle Bros., Inc.

v. Cty. Of Geauga, 103 F.3d 516 (6th Cir. 1997), the Sixth Circuit extended

Levald’s reasoning to a facial substantive due process claim. Id. Like in Levald,

the Sixth Circuit reasoned that “any deprivation of property that the appellant

suffered was fully effectuated when the county ordinance was enacted, and the

statute of limitations began to run at that time.” Id. (quoting Levald, 998 F.2d at

688).

Following its sister circuits, the Eleventh Circuit held that Hillcrest’s land

“became encumbered immediately upon the ordinance’s enactment in 2005.” Id.

2 The Defendant relies on affidavits that go beyond the facts of the Second

Amended Complaint to argue that Road Space’s sign applications were denied

for failure to comply with unchallenged provisions of the Sign Code. Although

the Plaintiff takes issue with this, the Defendant can rely on “material extrinsic

from the pleadings, such as affidavits or testimony” when asserting a factual

attack on the Plaintiff’s standing. Stalley v. Orlando Reg’l Healthcare Sys., 524

F.3d 1229, 1232-33 (11th Cir. 2008).

at 1283. The Court reasoned that “the property would have decreased in value

at that time because any current or future development plans would have been

subject to the Ordinance’s requirement[.]” Any future owners would not arguably

suffer an injury “because the price they paid for the property [would] reflect[] the

burden of [the ordinance].” Id. (quoting Guggenheim v. City of Goleta, 638 F.3d

1111, 1120 (9th Cir. 2010)).

The Court finds that the reasoning articulated by the Eleventh Circuit does

not apply to Road Space’s First Amendment challenges. Here, the harm to Road

Space or Road Space’s property rights (if any) did not occur when the Sign Code

was enacted. Unlike in the context of a takings claim or a substantive due

process claim alleging deprivations of property rights, Road Space’s rights were

not injured when the Sign Code was passed in 2007. This Court’s holding is

consistent with the court’s holding in 3570 East Foothill Blvd., Inc. v. Pasadena,

912 F. Supp. 1268, 1278 (C.D. Cal. 1996). In 3570 East Foothill, the court

rejected the statute of limitations argument asserted against a First Amendment

challenge and explained that,

The City’s argument is flawed because it

misapprehends the differences between a statute that

effects a taking and a statute that inflicts some other

kind of harm. In other contexts, the harm inflicted by

the statute is continuing, or does not occur until the

statute is enforced—in other words, until it is applied.

In the takings context, the basis of a facial challenge is

that the very enactment of the statute has reduced the

value of the property or has effected a transfer of a

property interest. This is a single harm, measurable and

compensable when the statute is passed.

Id. (quoting Levland, 998 F.2d at 688). Accordingly, the Court finds that the

statute of limitations does not bar the Plaintiff’s facial claims in Counts V-VIII.

F. Claims under the Florida Constitution

Lastly, the Defendant states that the Court should dismiss any state law

claims brought under the Florida Constitution. The Court found one sentence in

the Second Amended Complaint which states that “[t]hose claims which are

brought pursuant to the Florida Constitution are related in such a way to

Plaintiff’s federal claims that this Court has supplemental jurisdiction[.]” (ECF

No. 31 at ¶ 3.) Because the Plaintiff’s response does not clarify which claims, if

any, are brought pursuant to the Florida Constitution, and the Court does not

construe the complaint as containing any state law claims, the Defendant’s

motion on this point is denied as moot.

IV. Conclusion

Based on the foregoing, the Court grants in part and denies in part the

Defendant’s motion to dismiss. (ECF No. 34.) The Court grants the following

relief:

e The Defendant’s motion to dismiss Count I is granted.

e The Defendant’s motion to dismiss Count II is denied.

e The Defendant’s motion to dismiss Count III is granted in part and

denied in part. The Plaintiffs as applied claims are dismissed. The

Plaintiffs facial claims remain.

e The Defendant’s motion to dismiss Count IV is granted.

e The Defendant’s motion to dismiss Counts V-VIII is granted in part

and denied in part. The Plaintiff's as applied claims are dismissed.

The Plaintiffs facial claims remain.

Done and ordered at Miami, Florida, on January 28, 2020.

tS N. Scola, Jr.

United States District Judge