The Advantage of Advertising, LLC v. City of Opelika, Alabama

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF ALABAMA

EASTERN DIVISION

THE ADVANTAGE OF ADVERTISING, )

LLC, )

)

Plaintiff, )

)

v. ) Case No. 3:22-cv-612-RAH

) [WO]

CITY OF OPELIKA, ALABAMA, )

)

Defendant. )

MEMORANDUM OPINION AND ORDER

I. INTRODUCTION

The Advantage of Advertising, LLC engages in the business of erecting

public-facing signs for commercial and noncommercial purposes. In this dispute,

Advantage applied for permission to erect six signs in Opelika, Alabama. The City

of Opelika rejected all six sign applications. Advantage brings this suit challenging

the application denials, claiming violations of its First Amendment free speech and

Fourteenth Amendment equal protection rights, as well as violations of state free

speech laws and Alabama Code § 11-52-77 (creating procedures for a municipality

to follow before passing a municipal ordinance). The City has moved to dismiss,

asserting lack of standing and alternatively failure to state a claim. Upon

consideration of the parties’ arguments, the Court finds that the City’s motion is due

to be granted in part and denied in part.

II. JURISDICTION AND VENUE

The Court has original subject matter jurisdiction over Advantage’s federal

claims under 28 U.S.C. § 1331 and supplemental jurisdiction over its state law

claims under 28 U.S.C. § 1367(a). Personal jurisdiction and venue are uncontested,

and the Court concludes that venue properly lies in the Middle District of Alabama.

See 28 U.S.C. § 1391.

III. LEGAL STANDARD

Federal Rule of Civil Procedure Rule 12(b)(1) permits dismissal of an action

for lack of subject-matter jurisdiction, in this case due to standing concerns. A

defendant may use Rule 12(b)(1) to attack subject-matter jurisdiction in two ways:

facially and factually. See Murphy v. Sec’y, U.S. Dep’t of the Army, 769 F. App’x

779, 781 (11th Cir. 2019) (per curiam) (citing Morrison v. Amway Corp., 323 F.3d

920, 924 n.5 (11th Cir. 2003)).1 “Facial challenges to subject matter jurisdiction are

based solely on the allegations in the complaint.” Carmichael v. Kellogg, Brown &

Root Servs., Inc., 572 F.3d 1271, 1279 (11th Cir. 2009). “When considering such

challenges, the court must, as with a Rule 12(b)(6) motion, take the complaint’s

1 In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the Eleventh

Circuit adopted as binding precedent all of the decisions of the former Fifth Circuit handed down

prior to the close of business on September 30, 1981.

allegations as true.” Id. When analyzing a factual attack, though, the court may

consider “matters outside the pleadings, such as testimony and affidavits.” Murphy,

769 F. App’x at 781 (citing Lawrence v. Dunbar, 919 F.2d 1525, 1529 (11th Cir.

1990)). In such instances, the court is “not constrained to view [the facts] in the light

most favorable” to the plaintiff. Carmichael, 572 F.3d at 1279; see also Murphy,

769 F. App’x at 781.

A Rule 12(b)(6) motion to dismiss tests the sufficiency of the complaint

against the legal standard set forth in Rule 8, which requires “a short and plain

statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P.

8(a)(2); see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp.

v. Twombly, 550 U.S. 544, 570 (2007)). “To survive a motion to dismiss, a

complaint must contain sufficient factual matter, accepted as true, to ‘state a claim

to relief that is plausible on its face.’” Iqbal, 556 U.S. at 678 (citing Twombly, 550

U.S. at 570). In ruling on a motion to dismiss for failure to state a claim upon which

relief can be granted, the court must accept well-pled facts as true, but the court is

not required to accept a plaintiff’s legal conclusions. Id.

“Determining whether a complaint states a plausible claim for relief [is] . . . a

context-specific task that requires the reviewing court to draw on its judicial

experience and common sense.” Id. at 679 (citation omitted). The plausibility

standard requires “more than a sheer possibility that a defendant has acted

unlawfully.” Id. at 678. This pleading standard “does not require ‘detailed factual

allegations,’ but it demands more than an unadorned, the-defendant-unlawfully-

harmed-me accusation.” Id. (quoting Twombly, 550 U.S. at 555). Factual

allegations that fail to rise “above the speculative level” are insufficient to meet the

plausibility standard. Twombly, 550 U.S. at 555. Indeed, “[a] pleading that offers

‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause of

action will not do.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555).

IV. BACKGROUND

A. The City’s Sign Code

The City of Opelika has implemented an application and permitting process

for the erection of most signs within the City. The sign code substantially governs

billboards, off-site commercial signs, and on-site signs. Billboards—“[a]n

advertising sign or other commercial sign which directs attention to a business,

commodity, service, entertainment, or attraction sold, offered or existing elsewhere

than upon the same lot where such sign is displayed”—are prohibited. (Doc. 1-1 at

6, 17.) Off-site commercial signs—“non-accessory billboard[s] or sign[s] which

direct[] attention to a business, commodity, service, entertainment, or attraction that

is sold, offered or existing elsewhere than upon the same lot where such sign is

displayed”—are also prohibited.2 (Id. at 8, 17.) Billboards and other off-site

commercial signs erected prior to the date the sign code became effective were

grandfathered in. (Id. at 54–55.) Generally, on-site signs are permitted but subject

to size, luminosity and height requirements based on the zoning of the underlying

property.

Exempt from all requirements are government and statutory signs. (Id. at 16–

17.) A government sign is defined as a sign “erected by or on the order of a public

official or quasi-public entity . . . in the performance of any duty.” (Id. at 11–12.)

A statutory sign, meanwhile, is defined as a “sign the city is required to erect by any

statute of the State of Alabama or the United States for safety, directional, or traffic

control purposes.” (Id. at 14.)

As a general matter, no sign may be erected in the City without a City-issued

permit. On the permit (or sign) applications themselves, the applicant must provide,

among other things, information on sign illumination, size, location, and other signs

on the property. (Id. at 46–48.) Once a sign application has been filed, the City has

thirty days to review the application, and if no decision is provided within that

timeframe, the application is deemed denied. (Id. at 49.) After the thirty-day period

has passed, if the applicant did not receive a written decision as to the denial of their

2 The code defines an on-site sign as “[a] sign that advertises an activity conducted on the lot or

parcel of land on which the sign is located.” (Doc. 1-1 at 13.)

application, the applicant has sixty days to request a written reason for why the sign

was not approved, to which the City must respond within ten calendar days. (Id.)

The applicant then has a fourteen-day window to ask for reconsideration. (Id. at 50.)

Aggrieved parties may then seek judicial review. (Id. at 51.)

B. Advantage’s Sign Applications

After reaching agreements with various landowners to erect signs on their

properties, Advantage submitted six sign applications on March 15, 2021. (Doc. 1

at 9.) According to Advantage, each application was fully complete and included

documentation showing landowner permission to build on the site, “the required site

plan of the property showing the location” of each proposed sign, and “engineered

drawings showing the manner of construction and design of the sign.”3 (Id.)

City Sign Enforcement Officer Matt Mosley denied the applications via email

and regular mail on April 14, 2021. (Id. at 10.) According to Mosley, Advantage’s

applications were denied because they all were incomplete and because, given the

information that was provided, the proposed signs did not meet several code

requirements. (See Docs. 1-8 through 1-13.) For instance, among other reasons,

each application was denied because the proposed digital reader board exceeded 50

3 The applications, and information concerning the denials, are attached to the Complaint—1441

Gateway Drive (Docs. 1-2, 1-8), 0 Gateway Drive (Docs. 1-3, 1-9), 3300 Pepperell Parkway (Docs.

1-4, 1-10), 0 Frederick Road (Docs. 1-5, 1-11), 0 Cunningham Drive (Docs. 1-6, 1-12), and 1405

Geneva Street (Docs. 1-7, 1-13).

percent of the principal sign surface area, in violation of the code. (See, e.g., Doc.

1-8 at 5–6.) Some permit applications were also denied because their approval

would have resulted in too many signs at the given location. (See, e.g., Doc. 1-13 at

6.) Mosley also indicated that, contrary to the assertion made in three of the

applications, none of the signs could evade the sign code by carrying a message from

the Alabama Department of Public Health or other state agencies, since nothing was

submitted showing that an order by a government official directed the posting of

these particular signs. (Doc. 1-10 at 4–5, 14; Doc. 1-11 at 4, 14; Doc. 1-13 at 4–5,

14.) The denial letters also contained the following statement: “Also, as a reminder,

the City’s sign regulations generally prohibit off-site commercial advertising. To

the extent these signs would violate that prohibition, they cannot be allowed.” (See,

e.g., Doc. 1-9 at 6.)

Advantage contends that the City’s stated reasons for the application denials

were pretextual because other sign applications have been approved that were

incomplete or contained similar information. (Doc. 1 at 10–11.) Advantage also

contends that the denials were also based on impermissible content-based reasons.

(Id. at 8.)

C. Advantage’s Complaint

Aside from challenging the City’s application denials in the Circuit Court of

Lee County, Advantage also initiated this action alleging violations of its First

Amendment and Fourteenth Amendment rights based on (1) the prohibition on signs

with off-site messages; (2) discretionary aspects of the sign code allowing the City

to approve certain incomplete applications but denying others; (3) the lack of time

limits and other safeguards which allowed City officials to wait thirty days to rule

upon Advantage’s applications without affording them the ability to supplement

their applications; (4) the City’s alleged refusal to honor the exemption for

government signs in applications for signs containing content from the Alabama

Department of Public Health and other government agencies; (5) the City’s alleged

refusal to treat all signs with all messages at least as favorably as the most favored

content, including the City’s own speech; and (6) the City’s assertion of pretextual

bases for denial of Advantage’s signs for reasons that did not hinder the approval of

other signs. (Id. at 16–17.)

In support of its pretext argument, Advantage points to the sign application

for 1822 Pepperell Parkway, which the City had previously approved. (Doc. 1 at

13–14.) Advantage alleges that its sign applications were denied because

Advantage’s proposed signs were too tall, too big, or had a digital face that would

take up more than 50 percent of the sign face. (Id. at 13.) However, as Advantage

alleges, the City approved an application for a sign located at 1822 Pepperell

Parkway which was 30 feet tall and 300 square feet with a digital display taking up

the entire sign face—much like the proposed signs here. (See id.) Advantage also

alleges the City permitted the 1822 Pepperell sign to be erected despite there being

another freestanding sign on the same property—a rationale for the denial in many

of Advantage’s applications here. (Id. at 14.)

In Count One, Advantage asserts that the City violated its free speech rights

under the First Amendment of the U.S. Constitution and Article I, Section 4 of the

Alabama Constitution, facially and as applied, because the sign code is content based

and a prior restraint on free speech. (Id. at 19–27.) In Count Two, Advantage claims

that the City violated its equal protection rights under the Fourteenth Amendment

by favoring the speech of governments and other favored speakers and

organizations. (Id. at 27–28.) In Count Three, Advantage claims that the sign code

was enacted in violation of Alabama Code § 11-52-77. (Id. at 28–29.) Advantage

seeks an order compelling the City to allow the applied-for signs, a damages award,

legal fees and expenses, and further relief. (Id. at 29.)

V. DISCUSSION

The City moves to dismiss this action under Rule 12(b)(1) for lack of standing

and Rule 12(b)(6) for failure to state a claim upon which relief can be granted. The

Court will address these arguments in turn.4

4 The City also argues that the Complaint should be dismissed as an improper shotgun pleading.

The Court concludes that there is sufficient detail in the Complaint to ascertain the basis upon

which Advantage claims it was injured and by which it seeks relief from the City. Accordingly,

the City’s motion to dismiss on the grounds that Advantage filed an improper shotgun pleading is

due to be denied.

A. Standing

The City first argues under Rule 12(b)(1) that Advantage lacks standing to

challenge the sign code. It asserts that because each application was denied for

reasons other than the City’s ban on off-site advertising and since those other

reasons are not being challenged here, the Court cannot redress any alleged

constitutional injury; that is, the applications would have been denied anyway. The

City misconstrues the theory and extent of Advantage’s Complaint.

Article III of the Constitution limits federal courts to “adjudicating actual

‘cases’ and ‘controversies.’” See, e.g., Allen v. Wright, 468 U.S. 737, 750

(1984), abrogated on other grounds by Lexmark Int’l, Inc. v. Static Control

Components, Inc., 572 U.S. 118 (2014). To satisfy Article III’s well-established

“case or controversy” requirement, a plaintiff must demonstrate that it has

“standing” to sue by showing that it “(1) suffered an injury in fact, (2) that is fairly

traceable to the challenged conduct of the defendant, and (3) that is likely to be

redressed by a favorable judicial decision.” Flat Creek Transp., LLC v. Fed. Motor

Carrier Safety Admin., 923 F.3d 1295, 1300 (11th Cir. 2019) (quoting Spokeo, Inc.

v. Robins, 578 U.S. 330, 338 (2016)). Article III standing is a threshold inquiry. See

Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94–95 (1988).

“Because standing is jurisdictional, a dismissal for lack of standing has the same

effect as a dismissal for lack of subject matter jurisdiction under Fed. R. Civ. P.

12(b)(1).” Stalley ex rel. U.S. v. Orlando Reg’l Healthcare Sys., Inc., 524 F.3d 1229,

1232 (11th Cir. 2008) (per curiam) (citation omitted).

In First Amendment challenges to municipal speech regulation, “[a] plaintiff

who has established constitutional injury under a provision of a statute as applied to

[its] set of facts may also bring a facial challenge, under the overbreadth doctrine, to

vindicate the rights of others not before the court under that provision.” CAMP Legal

Defense Fund, Inc. v. City of Atlanta, 451 F.3d 1257, 1271 (11th Cir. 2006). A

plaintiff may even “bring a First Amendment case asserting the rights of third parties

if ‘a statute is constitutionally applied to the litigant but might be unconstitutionally

applied to third parties not before the court.’” Id. at 1270–71 (citation omitted). A

plaintiff, however, may not bring a facial challenge against any provisions of law

that do not affect its activities. Id. at 1273.

“Where a plaintiff alleges that a statute grants unbridled discretion, a plaintiff

need only be ‘subject to’ the provision to establish a constitutional injury.” Id. at

1275 (quoting City of Lakewood v. Plain Dealer Publ’g Co., 486 U.S. 750, 755–56

(1988)). But for purposes of establishing standing, “[i]n a challenge of a prior

restraint on speech the plaintiff must establish that the challenged provision pertains

to its activity, and not merely that it is ‘subject to the law.’” Id. at 1276 (quoting

Lakewood, 486 U.S. at 755–56). Furthermore, in sign regulation cases, even if there

is a plausible constitutional injury due to the denial of a sign application, “a plaintiff

whose sign permit applications were denied on the basis of one provision in a

[government’s] sign ordinance, but which could have been denied on the basis of

some alternate, but unchallenged regulation, does not have a redressable injury.”

Maverick Media Grp., Inc. v. Hillsborough Cnty., 528 F.3d 817, 820 (11th Cir. 2008)

(emphasis added).

The City’s arguments against standing mostly suffer from one of two

overarching flaws: they either overlook core elements of the Complaint clarifying

that each basis for denial of Advantage’s sign applications is being challenged, or

they improperly try to argue that the Complaint fails to state a claim under the guise

of raising a factual standing challenge. Perhaps most notably, the City takes far too

broad a reading of the rule that a sign applicant does not have standing to challenge

an application denial when the application was denied for an unchallenged

regulation. See Maverick Media Grp., 528 F.3d at 820. That is because Advantage

challenges all of the bases for the City’s application denials. And second, the City

attempts to use outside evidence, gathered for Rule 12(b)(1) purposes, to challenge

the substantive factual merits of Advantage’s complaint allegations. This the City

cannot do at this early stage in the case under the current pending motions. See id.;

Murphy, 769 F. App’x at 781.

Throughout the Complaint, Advantage asserts that each basis cited by the City

to deny its applications was pretextual and that the City has engaged in a pattern of

selective enforcement of its code.5 For example, Advantage points to an application

for a sign located at 1822 Pepperell Parkway filed by a different applicant in which

the City permitted the same general size and type sign as those sought by Advantage.

Citing jurisdictional discovery, the City responds that the Pepperell sign is indeed

nonconforming, but that it was a grandfathered sign. This ultimately may be

factually true, but it does not sufficiently counter the pleadings and incorporated

exhibits that plausibly show an inconsistent application of the sign code for the size

and type of signs at issue here. In any event, the City cannot use jurisdictional

discovery, obtained for Rule 12(b)(1) purposes, to try and show that a challenged

factual element of the City’s sign code precludes relief on the substantive merits.

The City’s arguments are better suited for consideration at a later stage.6

In another example of the City’s use of jurisdictional discovery to

substantively undermine Advantage’s pretext theory on the merits, the City argues

that the airport height notification zone is a content-neutral and alternative reason

for the denial of Advantage’s applications for the Frederick Road and Cunningham

5 Because Advantage’s theory sounds in selective enforcement, the City’s citation to similar

applicants must be saved for review on the merits. There is nothing inherently jurisdictional about

referencing potentially similarly situated sign applications to articulate one’s theory on the merits

as to selective enforcement, viewpoint discrimination, and Equal Protection, and thus the Court

must rely solely on the content of the pleadings in evaluating these claims at this stage.

6 The City also improperly relies upon jurisdictional discovery to challenge Advantage’s claims

on the merits that the denial of its applications on incompleteness grounds was pretextual. Again,

Advantage challenges this element of the sign code.

Drive lots. Advantage challenges both application denials on pretext grounds. The

Court may find Advantage’s claim as to both applications to be factually incorrect

once the Court may consider the actual facts, but nevertheless, Advantage directly

challenges this rationale for denying the permit applications, and therefore

Advantage has standing to proceed on this claim. See Maverick Media Grp., Inc.,

528 F.3d at 820. And again, the City cannot rely upon the evidence obtained under

its Rule 12(b)(1) challenge to base an argument better suited for a factual merits

inquiry. See Hulsey, 905 F. Supp. at 1070.

The City also spills a fair amount of ink arguing that Advantage’s sign

applications were not denied under the off-site commercial or billboard sign bans,

arguing that Mosley’s reference to the bans in his denial letters was merely an

alternative ground for the denials. But for standing purposes, it is irrelevant whether

a ground for denial of an application is alternative if each rationale for denial is being

challenged. See Maverick Media Grp., 528 F.3d at 820. Such is the case here.

The City also misses the mark on its standing challenge to Advantage’s

allegations concerning the government and statutory sign exemptions. The City

argues that Advantage was unaffected by these regulations because no governmental

entity directed the posting of their signs carrying messages from government

agencies. This argument completely downplays the core nature of Advantage’s

allegations—that it was harmed because it was not a government speaker itself, and

therefore could not bypass the application process for posting signs, particularly

signs containing governmental messages, like a government could. See Solantic,

LLC v. City of Neptune Beach, 410 F.3d 1250, 1264 (11th Cir. 2005) (finding an

exemption to a city sign code to be content based when it permitted “governmental

identification signs and informational signs to be freely posted, but require[ed] an

individual or private organization who wishes to post a sign identifying his office or

home, for example, to obtain a permit to do so”). Besides, the evidence cited by the

City undercuts its own argument that Advantage does not have standing here.

Mosley’s actions in contacting the Alabama Department of Public Health, the

Alabama Department of Transportation, and the Alabama Department of Economic

and Community Affairs to determine if they collaborated with Advantage suggests

that the same message would have been posted had these state agencies directed the

messages themselves. (See Doc. 18-1 at 10–11, 13–14, 18–19.) At this early stage,

Advantage’s argument that this exemption grants the City unfettered discretion, such

that Advantage is nevertheless subject to this provision in having to obtain a permit

for a sign when other speakers would not necessarily have to apply for a permit for

a sign conveying the same speech, is due to proceed. See CAMP, 451 F.3d at 1275.

The City does however raise one successful challenge to Advantage’s

standing to bring this action—Advantage’s standing to challenge the City’s time

limits for deciding sign applications, either as applied or facially. This is because

the City timely issued Advantage’s application denials within the thirty-day window.

Cf. Granite State Outdoor Advert., Inc. v. City of Clearwater, 351 F.3d 1112, 1118

(11th Cir. 2003) (finding no standing to challenge the time limitations in a sign

permitting scheme when the plaintiff was uninjured). And in addition, Advantage

has failed to plead any injury caused by the time constraints associated with the

City’s application denials.

Advantage argues in its response brief that the ability of the City to flatly deny

a sign application simply by letting the thirty-day review period lapse leaves the

City’s means of addressing sign applications to the unbridled discretion of City

officials, and accordingly, Advantage has standing to challenge the supposed lack of

time limitations placed on City officials considering sign applications. (See Doc. 25

at 25–26 (citing CAMP, 451 F.3d at 1274).) But Advantage fails to demonstrate

why this provision would serve to “deny expressive activity,” even assuming that

this provision grants “unbridled discretion.” See CAMP, 451 F.3d at 1274. Besides,

as the City points out, the Eleventh Circuit greenlighted a similar sign ordinance in

Café Erotica of Florida, Inc. v. St. John’s County, concluding that the automatic

denial of a sign application after thirty days is, without more, constitutional because

it nevertheless limits the extent to which a local official may delay the permitting

process. See 360 F.3d 1274, 1283–84 (finding the relevant sign ordinance

unconstitutional for granting unbridled discretion by other means). Simply put, the

automatic denial of a sign application after thirty days does not itself grant unbridled

discretion.

In short, Advantage may only challenge those aspects of the sign code that

directly concern its sign applications. Accordingly, the Court finds that Advantage

has standing to challenge the denial of each of its applications and that it has standing

to challenge, both facially and as applied, the following aspects of the sign code: the

off-site commercial sign and billboard bans; the completeness requirement for

Advantage’s sign applications; the governmental and statutory sign exemptions; and

the allegedly inconsistent and pretextual application of the size, height, and

numerosity requirements for Advantage’s proposed signs, as well as the application

of the airport height notification zone requirements.

B. First Amendment

As to the surviving claims concerning Advantage’s applications for off-site

signs and billboards, the City argues under its 12(b)(6) attack that Advantage fails

to state a plausible First Amendment claim because the Supreme Court has declared

that such prohibitions are not impermissible content-based prohibitions, its sign code

does not impermissibly favor certain speakers through its governmental sign

exemption, and Advantage has no maintainable claims based on city officials’

purported “unfettered discretion.” None of these arguments are persuasive.

The City is correct that the Supreme Court has clarified that off-site sign and

billboard prohibitions do not constitute content-based discrimination under the First

Amendment. Recently, in City of Austin v. Reagan National Advertising of Austin,

LLC, the Supreme Court affirmed that an off-site sign prohibition is not a “content-

based” regulation of speech, and therefore is not entitled to strict scrutiny, since it is

not a “regulation[ ] that discriminate[s] based on ‘the topic discussed or the idea or

message expressed.’” 142 S. Ct. 1464, 1473–74 (2022). Rather, the Supreme Court

explained that on-/off-premises distinctions are comparable to ordinary time, place,

or manner restrictions, since “[t]he message on the sign matters only to the extent

that it informs the sign’s relative location,” and therefore such regulations are subject

to intermediate scrutiny. Id. at 1473, 75.

The City fails to sufficiently show at this stage though that its off-site

commercial sign and billboard prohibitions survive intermediate scrutiny. The City

briefly cites Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 508–09 (1981),

and Messer v. City of Douglasville, 975 F.2d 1505, 1509 (11th Cir. 1992), to argue

that such bans naturally pass intermediate scrutiny under the Central Hudson7 test

for evaluating the constitutional legitimacy of regulating commercial speech. But

the City makes no real effort to argue why its code is similar to those upheld in

Metromedia or Messer under the Central Hudson standard, or even why this finding

7 Central Hudson Gas & Elec. Corp. v. Public Serv. Comm’n of N. Y., 447 U.S. 557 (1980).

should be reached in such a conclusory manner on the pleadings alone. Besides, a

core aspect of Advantage’s claim is that the billboard ban is being applied in a

deliberately inconsistent manner, and the City’s argument makes no attempt to

address that issue. The City’s position may well succeed at summary judgment, but

at this early stage, based on the Complaint’s allegations, Advantage has alleged

sufficient facts plausibly showing that the billboard and off-site commercial sign ban

is being selectively enforced, triggering concerns that the City is granting or denying

permits based on the content of Advantage’s proposed signs.

The City also argues that Advantage cannot plausibly raise a First Amendment

challenge against the City’s governmental and statutory sign exemptions because the

code simply reflects the City’s lack of control over the conduct of other

governmental entities under Alabama law, and in any event, governmental speech is

not subject to the First Amendment. At this early stage of the proceedings though,

the Court is unable to ascertain the exact parameters of the governmental and

statutory sign exemptions based on the language of the sign code. All that is stated

in the code itself is that signs directed per statute or per a government directive are

exempt from the requirements of the ordinance. (Doc. 1-1 at 11–12, 14, 16–17.)

This information alone does not inform the Court of the meaning of performance of

a duty, the scope of the government or quasi-governmental entities granted this

exemption, or how the City makes the determination that a given sign can be erected

under this exemption. Accordingly, based on the pleadings alone—and particularly

Advantage’s allegations concerning its proposed advertisements on behalf of state

agencies—it is plausible that the City is impermissibly favoring governmental

speakers over non-governmental speakers.

The City’s arguments asserting that the First Amendment does not cover

governmental speech are inapposite here. The City argues that the Eleventh Circuit

recently clarified that government speech is not governed by the First Amendment.

But the case the City relies upon, Leake v. Drinkard, concerned a government

prohibition on a message made as part of a government-sponsored public event. 14

F.4th 1242, 1247–48 (11th Cir. 2021). Here, there are allegations that only the

government may make statements without prior approval while Advantage cannot.

And the Eleventh Circuit has already established that this type of conduct by a

municipality is subject to strict scrutiny. See Solantic, 410 F.3d at 1264. Since the

City makes no attempt to show that this regulation complies with strict scrutiny, the

argument that the City impermissibly favors government speech is reserved for a

later date.

And finally, the City’s broader arguments concerning allegations of

“unfettered discretion” also must fail. Since the Court is currently evaluating this

case based on the Complaint itself, the Court finds that the allegations in the

Complaint plausibly suggest that the City is impermissibly treating different sign

applications under differing standards. That is, rather than denying or granting each

application based on its content-neutral regulations, the City is inconsistently

applying its own regulations. And just because the sign code spells out specific

guidelines for how the City is to evaluate a sign application does not mean that the

City is adhering to these guidelines in practice. Advantage’s First Amendment

allegations may not survive summary judgment, but at this stage, this claim will

proceed.

C. Equal Protection

The City next argues in its 12(b)(6) motion that Advantage’s Equal Protection

challenges fail because Advantage does not identify any so-called favored speakers

and because the government cannot be used as a comparator in an Equal Protection

action.

“The Equal Protection Clause ‘is essentially a direction that all persons

similarly situated should be treated alike.’” Chabad Chayil, Inc. v. Sch. Bd. of

Miami-Dade Cnty., 48 F.4th 1222, 1233 (11th Cir. 2022) (quoting City of Cleburne

v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985)). The Equal Protection Clause

prevents the government from “treating differently persons who are in all relevant

respects alike.” Nordlinger v. Hahn, 505 U.S. 1, 10 (1992). “When legislation

classifies persons in such a way that they receive different treatment under the law,

the degree of scrutiny the court applies depends upon the basis for the classification.”

Gary v. City of Warner Robins, 311 F.3d 1334, 1337 (11th Cir. 2002).

The City focuses much of its attention on Advantage’s allegations pointing to

government speakers as comparators. It first asserts that it is unable to control how

other sovereign governments operate to erect signs under Alabama law, and this is

the rationale for the government and statutory sign exemption. This may be so. But

at this stage, based on the pleadings and the text of the ordinance, the Court is unable

to determine the true scope of the government and statutory sign exemptions.

The City also argues that government speech is not subject to regulation under

the Equal Protection Clause. The cited cases though concern lawsuits challenging

the content of government speech, not instances where the government has favored

government speech over non-government speech when the message is identical. See

Gundy v. City of Jacksonville, 50 F.4th 60, 75 n.6 (11th Cir. 2022); Fields v. Speaker

of Pa. House of Representatives, 936 F.3d 142, 161 (3d Cir. 2019); Bloomberg v.

Blocker, 586 F. Supp. 3d 1251, 1258 (M.D. Fla. 2022). Again, the City overlooks

that Advantage’s claim is not an attack on the content of government speech per se,

but rather an objection to government speakers being favored over non-government

speakers wishing to advance the same message.

The City proceeds to argue that even if Advantage could bring an Equal

Protection challenge in the realm of government speech, it could not consider the

government to be similarly situated, thus precluding a class-of-one Equal Protection

challenge. Once again, the Court is not yet able to ascertain the full scope of the

governmental and statutory sign exemptions, and thus finds resolution of this issue

to be premature. For a similar reason, the Court finds that it is too early in the

proceedings to address the City’s arguments asserting a rational basis for

discriminatory treatment. See SmileDirectClub, LLC v. Lacefield, No. 1:18-CV-

02328-SDG, 2023 WL 2763662, at *7–8 (N.D. Ga. Mar. 31, 2023) (observing that

“while the black-letter rational basis standard appears clear enough, it imposes an

exceptionally weighty burden on plaintiffs that seems as stringent as the

Twombly/Iqbal pleading standard is lenient,” and concluding that this burden should

not be used to grant a motion to dismiss when an equal protection claim is not

“implausibly pled and incapable of proof”).

The City also overlooks the allegations in the Complaint that also compare

Advantage’s sign applications to the admittedly noncompliant 1822 Pepperell

Parkway billboard, which the Court construes as Advantage’s main comparator for

equal protection purposes. The closest the City comes to challenging this

comparison is arguing that Advantage does not plead a lack of rational basis for the

distinction in treatment. But treating the complaint allegations as true, Advantage

plausibly pleads a scenario where the Pepperell sign was arbitrarily allowed to evade

certain code regulations while Advantage’s was not. At this early stage in the

proceedings, this is sufficient for Advantage’s remaining Equal Protection claim to

proceed.

D. Alabama Law Claims

Lastly, the City challenges Advantage’s state law claims. It argues that

Advantage cannot articulate a similar free speech claim under Alabama law as it can

under federal law. It also asserts that Advantage fails to sufficiently challenge the

City’s sign code under Alabama Code § 11-52-77.

The Court agrees that Count Three of the Complaint fails to plausibly state a

claim under Alabama Code § 11-52-77 which sets out the procedures by which

municipalities can pass municipal ordinances. Without reference anywhere in the

Complaint as to how exactly the City’s sign code violates this statute, the Court

cannot ascertain any plausible basis for this claim. In fact, all the Court can make

out in this Complaint as to this issue is the one line in which Advantage states,

“When adopting the Sign Regulations, the City failed to comply with these

procedures.” (Doc. 1 at 29.) Advantage has not plausibly plead its state law

statutory claim, and therefore that claim is due to be dismissed. See Iqbal, 556 U.S.

at 678 (“A pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of

the elements of a cause of action will not do.’” (quoting Twombly, 550 U.S. at 555)).

The Court finds, however, that the City has failed to show its entitlement to

dismissal of the state law free speech claim. Simply put, the City does little more

than point out that Alabama law slightly differs from federal First Amendment

jurisprudence. But the City’s motion makes no effort to articulate how the two

bodies of law differ or why this difference is applicable here. And it remains the

City’s burden to raise and show its entitlement to relief on a motion to dismiss, and

not this Court’s obligation to do the City’s work for it. Accordingly, Advantage’s

free speech challenge under Alabama state law is due to proceed.

VI. CONCLUSION

Accordingly, it is ORDERED that the City of Opelika’s Motion to Dismiss

(Doc. 16) is GRANTED in part and DENIED in part as follows:

(1) To the extent the City seeks to dismiss Advantage’s challenges to the

City’s time restrictions under Counts One and Two, the Motion to

Dismiss is GRANTED and these claims are DISMISSED without

prejudice;

(2) To the extent the City seeks to dismiss Count Three, the Motion to

Dismiss is GRANTED and the claim is dismissed without prejudice;

(3) With respect to the remaining claims set forth in the Complaint, the

Motion to Dismiss is DENIED. Counts One and Two of the Complaint

shall proceed based on the First Amendment, Equal Protection Clause,

and state law facial and as-applied challenges to the following aspects of

the sign code: the billboard and off-site sign ban, the allegedly

inconsistent application of the City’s application completeness

requirement, the governmental and statutory sign exemptions, and the

allegedly inconsistent and pretextual application of the City’s sign size,

height, and numerosity requirements, as well as the airport height

notification zone requirements.

DONE, on this the 7th day of August 2023.

R. AUSTIN op JR.

UNITED STATES DISTRICT JUDGE

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