Granite State Outdoor Advertising, Inc. v. City of St. Petersburg

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR TH E ELEV ENTH C IRCUIT

________________________ FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

No. 02-16433

October 28, 2003

________________________ THOMAS K. KAHN

CLERK

D. C. Docket No. 01-02250-CV-T-30

GRANITE STATE OUTDOOR

ADV ERT ISIN G, IN C.,

Plaintiff- Appe llant-

Cross-Appellee,

versus

CITY OF ST. PETERSBURG, FLORIDA,

Defendant-Appellee-

Cross- Appe llant.

________________________

Appeals from the United States District Court

for the Middle District of Florida

_________________________

(October 28 2003)

Before BLACK and FAY, Circuit Judges, and HUCK *, District Judge.

BLACK , Circuit Judge:

*

Honorable Paul C. Huck, United States District Judge for the Southern District of

Florida, sitting by designation.

After its permit applications were denied, Granite State Outdoor Advertising,

Inc. (Granite) filed suit seeking to compel the City of St. Petersburg (City) to allow

Granite to erect six billboards inside the City’s limits. We must decide whether the

First A mendm ent requ ires a con tent-neu tral mun icipal sign ordinan ce to exp ressly

limit the am ount of time a mu nicipality m ay take to p rocess a p ermit app lication.

The district court found the complete absence of time limits necessitated the

invalidatio n of the C ity’s sign o rdinanc e. On th is issue alo ne, we r everse an d hold

time limits a re not per se required. Accordingly, the City is entitled to summary

judgm ent, and n either dam ages no r attorney s’ fees are a pprop riate.

I. BACKGROUND

Like many other municipalities, the City has an ordinance to regulate the

appeara nce, locatio n, and n umber of signs within its bound aries. S T. P ETERSBURG,

F LA., C ODE §§ 16-666–713. In part, this sign ordinance restricts the placement of

off-premise signs. An off-premise sign is defined as any sign that “identif[ies] or

advertis[es] a product, business, person, activity, condition, or service not located or

available on the same zone lot where the sign is installed and maintained.” Id. § 16-

666(1 6).

2

The sign ordinance regu lates off-premise signs in several noteworthy w ays.

First, an o ff-prem ise sign is p ermitted o nly on a lo t zoned c omme rcial/indu strial. Id.

§ 16-671(3). Second, an off-premise sign is permitted on a lot only if there are no

other stru ctures the re. Id. § 16-7 10(1)( f)(1). T hird, on ly one of f-prem ise sign is

permitted per lot. Id. Fourth , each off -premis e sign m ust com ply with the heigh t,

area, sepa ration, an d setback requirem ents set fo rth in the s ign ord inance. Id. § 16-

710(1 )(f)(4)– (7). Fin ally, a sign p ermit is req uired. Id. § 16-6 92.

To obtain a sign permit, an applicant must submit a sign plan demonstrating

that the pr oposed sign com plies with the sign o rdinanc e. Id. § 16-692(e). The

ordinance, however, does not require the City to process an application within any

certain am ount of time.

Granite acquired signed lease agreements authorizing it to construct and

operate b illboard s igns on six differ ent parce ls of real p roperty w ithin the C ity.

Granite then applied to the City for the necessary sign p ermits. Seventeen days

later, the City informed Granite all of its applications had been rejected because

(1) othe r structur es already existed o n the lots, a nd (2) G ranite failed to demo nstrate

compliance with the height, separation, and setback requirements. The City further

informed Granite that one of its six applications also soug ht to erect an off-premise

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sign on a lot zoned residential multifamily, and a second failed to demonstrate it met

the minim um fro ntage req uiremen t.

Granite did not a dministr atively app eal the City ’s denial o f its applica tions.

Instead, Granite promptly filed suit claiming the sign ordinance was

unconstitutional, both as-applied and facially.

After b oth partie s move d for su mmary judgm ent, the dis trict court e ntered its

order, granting in part and denying in part both motions. The district court found

(1) Granite’s as-applied challenge failed; (2) several provisions of the sign

ordinance were unconstitutional but severable;1 (3) the sig n ordin ance’s failu re to

specify any time limits gave City officials undue discretion, was nonseverable, and

necessitated the invalidation of the remainder of the ordinance; and (4) Granite was

not entitled to damages or attorneys’ fees.

After the district court entered judgment for Granite, Granite demanded that

the City immediately allow it to erect its six billboards. The City refused and filed a

Motion for Clarification and Stay of the Order Pending Appeal. During the motion

1

After carefully scrutinizing the text of the entire sign ordinance, the district court

invalidated and severed the following three provisions: (1) the provision prohibiting the display of

political signs until 45 days or fewer before an election; (2) the provision limiting the maximum

size of a free speech sign to four feet; and (3) the provision stating that signs may not be displayed

on seawalls and piers unless they are approved by the City Manager. After severing these

provisions, the district court found the remaining text to be constitutionally sound.

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hearing, the district court stated it was neither requiring the City to issue permits nor

ordering it to allow Granite to erect billboards. The district court issued a second

written order granting a stay and adopting its oral clarification. The parties appeal

and cross-appeal from these tw o orders.

II. DISCUSSION

We aff irm with out discu ssion m uch of th e result rea ched by the district c ourt. 2

We reverse, however, with respect to whether time limits are required and hold they

are not. We also briefly note that both damages and attorneys’ fees are

inappro priate.

A. Time L imits

Granite argues that the lack of specific time limits confers excessive

discretion on City officials, thereby potentially chilling speech before it occurs. The

district court found the absence of time limits required it to grant summary judgment

for Granite and invalidate the entire ordinance. We review the district court’s grant

of sum mary jud gment de novo. See Nat’l Fire Ins. Co. v. Fortune Constr. Co., 320

F.3d 1 260, 12 67 (11 th Cir. 20 03).

2

In particular, we note our review of the record confirms the district court’s finding that

three provisions of the sign ordinance are invalid and severable. See supra note 1. Accordingly,

whenever we refer to the sign ordinance, we mean the sign ordinance less these provisions.

5

We begin our analysis by summarizing the two Supreme Court cases that

establish the extent to which specific procedural safeguards, such as time limits, are

required .

In the firs t case, Freedman v. Maryland, 380 U.S. 51, 85 S. Ct. 734 (1965),

the Supreme Court invalidated a content-based state law requiring motion pictures

to obtain a license p rior to rele ase. Id. at 58, 85 S. Ct. at 738-39. The licensing

board had the exclusive discretion to deny a license if it concluded a film was

obscen e. Id. The Court held such a restraint was only valid if the licensing scheme

containe d the follo wing s pecific pr ocedur al safegu ards:

(1) any restraint prior to judicial review can be imposed only for a

specified brief period during which the status quo must be maintained;

(2) expeditious judicial review of that decision must be available; and

(3) the censor must bear the burden of going to court to suppress the

speech a nd mu st bear the burden of proo f once in court.

FW/PBS, Inc. v. Dallas, 493 U.S. 215, 227, 110 S. Ct. 596, 606 (1990) (citing

Freedman, 380 U.S. at 58-60, 85 S. Ct. at 739-40) (emphasis added).

In the sec ond cas e, Thomas v. Chica go Pa rk Dist., 534 U .S. 316 , 122 S . Ct.

775 (2 002), th e Cour t conside red a con tent-neu tral perm itting sche me. Id. at 320-

23, 122 S. Ct. at 778-80. Writing for a unanimous Court, Justice Scalia explained

that having to obtain a permit to hold a public event in a park was quite different

from the censorship at issue in Freedman. See id. (noting that the content-neutral

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regulation of expression was n ot the type of “core abuse” against which the F irst

Amendment was originally crafted to protect). Accordingly, the Court held the

“extraord inary pro cedural s afeguar ds” requ ired in Freedman were in applicab le. Id.

at 323-24, 122 S. Ct. at 780. In particular, even though the ordinance at issue

required all permit applications to be processed in 28 days, the Court never stated

time limits were per se required for a per mitting sc heme to be valid. See id. Rather,

the Court simply held all that was required were “adequate standards to guide the

official’s decision and render it subject to judicial review.” Id.

Clearly, whether Freedman or Thomas controls here depends on whether the

City’s sign ord inance is conten t-based or co ntent-neutral. T he govern ment’s

objective in regula ting spee ch is the co ntrolling conside ration. Ward v. Rock

Against Racism , 491 U.S. 781, 791, 109 S. Ct. 2746, 2753-54 (1987). More

specifically, if the government’s reasons for regulating speech have nothing to do

with co ntent, then the regu lation is co ntent-ne utral. Id.; see also Messer v. City of

Doug lasville, 975 F.2d 1505, 1509 (11th Cir. 1992) (stressing that location-based

regulatio n is not co ntent-ba sed regu lation).

Here, th e ordina nce states o n its face th at it was en acted to (1 ) prom ote

uniform ity, (2) pre serve aesthetics, and (3) foste r safety. S T. P ETERSBURG, F LA.,

C ODE § 16-667(b)(2). In addition, our review of the record does not suggest the

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sign ord inance d iscrimina tes imper missibly b ased on content. 3 Thus, we conclude

the sign ordinance is content-neutral and Thomas controls .

Accordingly, we are simply required to assess whether the ordinance contains

adequa te standar ds to gu ide officia l decision making . See Thomas, 534 U.S. at 323-

24, 122 S. Ct. at 780. Reviewing the text of the sign ordinance again convinces us

that it does. After all, City officials may not exercise unlimited discretion. They can

only process permit applications based upon objective criteria set forth in the

ordinance.4 No official is able to reject an application simply because of the

proposed content. Moreover, anyone adversely affected by the ordinance may

resort to e ither adm inistrative r eview o r—as Granite has don e—th e courts.

We rea lize City of ficials cou ld poten tially delay th e proces sing of c ertain

permit ap plications and ther eby arbitr arily supp ress disfa vored s peech. W e will no t,

however, address hypothetical constitutional violations in the abstract. As the

Supreme Court noted in Thomas, we believe “abuse must be dealt with if and when

3

The City’s sign examiner stated in an affidavit that she does not “review any wording or

content” of a proposed sign, other than to “ascertain if it pertains to an on-premises commercial

or non-commercial activity or an off-premises activity [and e]ven then, [she] never make[s] a

decision based on the viewpoint of the message.”

4

Consider, for instance, the case of someone wishing to erect a billboard. If that person

applies for a sign permit, the City can only deny the application based on specific, objective

criteria—e.g., the proposed billboard is too close to the road, too large in size, too tall, located on

a lot with other structures, or located on a lot not zoned commercial/industrial. See supra Part I.

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a pattern of unlawful favoritism appears, rather than by insisting upon a degree of

rigidity that is found in few legal arrangements.” Id. at 325, 1 22 S. C t. at 781.

Furthermore, we are reluctant to invalidate an entire legitimately-enacted ordinance

absent more of a show ing it is as problematic as Granite claims. 5

We fin d additio nal supp ort for o ur hold ing in the decision s of othe r courts.

Signific antly, the o nly other Circuit co urt to dire ctly consid er the issu e of time lim its

post-Thomas also held that the Freedman requirements were inapplicable to a

content-neutral permitting scheme:6

[T]he procedural safeguards requirement has little relevance to the

present c ase. Th[ at] doctrin e comes into play p rimarily w hen a S tate

undertakes to shield the public from certain kinds of expression it has

labeled offensive. Few cases invoke the requirement for procedural

safeguards unless an explicit censorship scheme—which by definition

is not con tent-neu tral—is under a ttack, and the Sup reme C ourt rece ntly

has confirmed [in Thomas] that the pr ocedur al safegu ards do ctrine is

so limited in scope.

5

In one short sentence, the district court termed permit delays a “serious issue” and

referenced several news clippings attached to one of the affidavits. The news clippings, however,

simply explain that the Mayor of the City decided to improve permit-processing time. Keeping

Thomas’s admonition in mind about the need to avoid deciding hypothetical claims (and realizing

that the district court did not have the benefit of an opinion from this Court addressing billboard

cases post-Thomas), we note the Mayor’s decision to improve administrative service does not

necessarily mean a constitutional problem existed.

6

The First Circuit did not consider the issue of time limits directly, but it did note the

automatic issuance of permits negates any concern that “officials could effectively deny permits by

dragging their feet.” New England Reg’l Council of Carpenters v. Kinton, 284 F.3d 9, 25 (1st

Cir. 2002). Nothing in our opinion should be construed as saying there is not merit—even

wisdom—in incorporating specific time limits into the text of sign ordinances; rather, we simply

hold time limits are not per se required when the licensing scheme at issue is content-neutral.

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Griffin v. Sec’y of Veterans Affairs, 288 F.3d 1309, 1328 (Fed. Cir. 2002)

(upholding a federal regulation not limiting the amount of time for which the

Veterans Adm inistration could consider requests to speak on agen cy property)

(citations and internal quotation marks omitted). At least two district courts also

reached the same conclusion.7

For these reasons, we reverse on this point and hold that the lack of time

limits is con stitutionally acceptab le. The C ity’s sign o rdinanc e thus rem ains in

effect, and —sin ce Gran ite has thu s far failed to comp ly with th e applicab le

provisio ns— the City is e ntitled to su mmary judgm ent.

Even if we were to invalidate the sign ordinance in its entirety—which we are

most assuredly not doing—we still would not order the City to allow the erection of

the billboards. The City asserts that other provisions of the zoning ordinance

apply— for instan ce, prov isions rela ting to saf ety, wind loading , and bu ilding co des.

The district court, however, made no findings regarding these provisions. Thus, we

have no way of know ing wh ether G ranite is in c omplian ce, and w e wou ld have to

remand.

7

E.g., B & B Coastal Enters., Inc. v. Demers, No. CIV.03-05-P-C, 2003 WL 21730760,

at *11 (D. Me. July 25, 2003); Lamar Adver. Co. v. City of Douglasville, 254 F. Supp. 2d 1321,

1333-34 (N.D. Ga. 2003). But see Diener v. Reed, 232 F. Supp. 2d 362, 378-79 (M.D. Pa. 2002)

(reading Thomas narrowly and evaluating permit scheme at issue by comparing provisions in

challenged ordinance to ordinance upheld in Thomas).

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B. Damages and A ttorneys’ Fees

Granite is not entitled to actual damages because its as-applied challenge

failed. See Carey v. Piphus, 435 U.S. 247, 266, 98 S. Ct. 1042, 1054 (1978)

(stating that “substantial damages should only be awarded to compensate actual

injury”).

Likewise, Granite is not entitled to nominal damages. Courts must award

nominal damages only when certain absolute rights are violated—for instance, the

right to p rocedu ral due p rocess. Id. at 266, 98 S. Ct. at 1053-54. Here, neither

Granite’s First Amendment rights nor its procedural due process rights were

violated. All that occurred was that Granite applied for a sign permit and was

denied. Given that we upheld as constitutionally sound the provisions of the sign

ordinance that applied to Granite—including the absence of specific time

limits—Granite is not entitled to nominal dam ages.

Finally, G ranite is no t entitled to a ttorneys’ f ees und er 42 U .S.C. § 1 988.

Attorneys’ fees are proper only when a civil rights plaintiff qualifies as a “prevailing

party.” Farrar v. Hobby, 506 U .S. 103 , 109, 11 3 S. Ct. 5 66, 572 (1992 ). A par ty

prevails by receiving “actual relief on the merits of his claim [that] materially alters

the legal relationship between the parties by modifying the defendant’s behavior in a

way that directly benefits the plaintiff.” Id. at 111-12, 113 S. Ct. at 573. Here, the

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relationship between the parties is unaltered. Granite is no closer to being permitted

to erect its billboards than it was when litigation began.8 Thus, G ranite is no t a

prevailing party, and an award of attorneys’ fees would be inappropriate.

III. CONCLUSION

We affirm in part the result reached by the district court by holding

(1) Granite’s as-applied challenge fails, (2) the provisions of the sign ordinance

detailed supra note 1 are unconstitutional but severable, and (3) Granite is not

entitled to either damages or attorneys’ fees. We reverse with respect to whether

the City’s s ign ord inance m ust conta in specific time limits a nd hold it need no t.

Accor dingly, th e sign or dinance remains in effect, an d the City is entitled to

summ ary judg ment.

AFFIRMED IN PART and REVERSED IN PART.

8

We realize several minor provisions in the sign ordinance have been altered as a result of

Granite’s labors. See supra note 1. These provisions, however, have no bearing on Granite, and

thus their alternation does not serve to confer prevailing party status upon Granite. See Farrar,

506 U.S. at 113-14, 113 S. Ct. at 574-75 (explaining that something more than a technical victory

is required).

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