# New South Media Group LLC v. Rainbow City, Alabama, City of

> District Court, N.D. Alabama · March 11, 2024

URL: https://www.frixlaw.com/law-library/cases/9992051

## Case

- **Court:** District Court, N.D. Alabama
- **Decided:** March 11, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9992051

## How later opinions describe it (automated extraction)

- finding challenge to other provisions of an ordinance non-redressable where an unchallenged provision of the ordinance caused denial of the billboard application
- finding that a plaintiff attempting to erect off-premises billboards lacked standing to challenge the lack of procedural safeguards and permitting requirements because the ordinance prohibited all off-premises signs and billboards

## Opinion text

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
MIDDLE DIVISION

NEW SOUTH MEDIA GROUP
LLC, et al.,
Plaintiffs,
v. Case No. 4:22-cv-461-CLM

CITY OF RAINBOW CITY,
ALABAMA,
Defendant.
MEMORANDUM OPINION
This case is about a city’s ban on billboards. New South Media
Group, LLC, Deverick Williams, William Wilson, and Rainbow Powder
Coatings, Inc. (collectively, “Plaintiffs”) applied to Rainbow City, Alabama
(“Rainbow City”) for four sign permits. Rainbow City denied all four
applications because, in the city’s opinion, all four applications sought to
erect a billboard and the city strictly prohibits billboards.
Plaintiffs sue Rainbow City for violating their First Amendment
rights. The city moves for summary judgment (doc. 12), and Plaintiffs
move for partial summary judgment. (Doc. 29). For the reasons stated
within, the court GRANTS IN PART Rainbow City’s motion (doc. 12) and
DENIES Plaintiffs’ motion as MOOT. (Doc. 29).
BACKGROUND
The Parties: New South Media Group, LLC (“New South”) is a
content development studio that erects and operates signs in Alabama for
businesses, individuals, churches, charities, and public governmental
agencies. (Doc. 1, p. 1; www.newsouthmedia.com/narrative).
Plaintiffs Williams and Wilson each post signs on their properties
in Rainbow City that are readily visible from the highway. Both Williams
and Wilson entered into agreements with New South to post signs on their
properties: two signs for Williams and one for Wilson. Rainbow Powder
Coatings, Inc. is a local Rainbow City business that uses signs to
communicate with its customers and the public. (Doc. 1, p. 3). All four
plaintiffs join in this suit to challenge the constitutionality of Rainbow
City’s Sign Regulations.1 (Doc. 30-2, pp. 77-89).
Relevant Sign Regulations: The Sign Regulations begin with their
purpose in Section 210, which “acknowledges the legitimate public need
for business visibility through outdoor advertising” and “the legitimate
public need for a beautiful and uncluttered community and the City’s
legitimate need to ensure safe traffic circulation on City streets.” (Doc. 30-
2, p. 77).
Section 211 then defines certain terms within the Sign Regulations.
Relevant here, Section 211 defines “billboard” as “[a]ny sign owned by a
person, corporation, or other entity that is erected for the purpose of
selling, leasing, or donating the display space on that sign to an
advertiser.” (Doc. 30-2, p. 78).
Section 212 lists the requirements for permits, fees, and inspections.
Section 212(a) states: “Except where this chapter explicitly exempts a
sign, all signs erected shall require a sign permit issued by the Zoning
Administrator.”
Section 213 lists the permit exemptions mentioned in Section 212.
The court lists them, emphasizing the four at issue: (1) historic markers,
(2) traffic control signs, (3) directional signs, (4) flags, (5) artistic
displays, (6) real estate or rental signs, (7) construction site identification
signs, (8) window signs, (9) political signs, (10) garage or yard sale signs,
(11) special event signs and decorations, (12) entrance/exit signs, (13)
farm information signs, (14) vehicle signs, (15) building nameplates, and
(16) legal notices and official instruments. Id. at 81-84 (emphasis added).
Although these signs are exempt from permits, they “are permitted in

1 The Rainbow City Sign Regulations can be found in Rainbow City’s Zoning Ordinance #360,
Sections 210-221.
accordance with the standards contained within this section and any other
applicable provisions of these sign regulations.” (emphasis added).
Immediately following the exemptions, Section 214 states: “Except
where qualified below, the following signs are specifically prohibited
throughout the city,” and the section includes “billboards” as a prohibited
type of sign. Jd. at 84.
New South’s Sign Applications: On April 6, 2021, New South
applied for four sign permits in Rainbow City. Application 1 was for an
artistic display sign to be posted at 1215 West Grand Avenue. (Doc. 24,
pp. 10-12). Application 2 was for a flag sign to be posted on vacant
property adjacent to East Grand Avenue. (Doc. 28, pp. 10-12). Application
3 was for a special event sign to be posted on vacant property adjacent to
East Grand Avenue. (Doc. 26, pp. 138-15). And Application 4 was for a
political sign to be posted at 3500 Rainbow Road. (Doc. 21, pp. 16-18):
Initial Content Initial Content

>
neil — |
ges rr we J
ee oe ee ee 2
= a es
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= a
Subject: RE (cs applications
Mr. Bell,
Thank you for your interest in Rainbow City but I must inform you that new
Billboards are prohibited throughout the City, therefore we are unable to process
your sign applications.
Heather HULL
Clerk, Building Dept.
City of Rainbow City, AL
3700 Rainbow Drive
Rainbow City, AL 35906
About two months later, Ms. Hill forwarded the email to Laura
Lloyd, who then forwarded it to New South’s attorney, Adam Webb. Mr.
Webb responded to Ms. Lloyd, informing her that the email address in the
City’s initial email was misspelled, that New South never received the
denial of the sign applications, and that it would like to appeal the denials
and seek variances to the Board of Adjustment. (Doc. 19, p. 95). Ms. Hill
sent New South the variance applications and stated that the next Board
of Adjustment meeting was scheduled for July 6, 2021. Id. at 93.
New South promptly appealed the denial of each sign application to
the Zoning Board of Adjustment? and submitted variance applications for
each of the four proposed signs. (Doc. 1, p. 6). As grounds for its appeals,
New South argued that (1) Section 214’s prohibition on billboards should
be read in the context of Section 2138, which expressly exempts the types
of signs it sought to display; and (2) the City’s Sign Regulations were
unconstitutional, making the denials a legal nullity. Jd. at 7.

3 The Board of Adjustment has the power “to hear and decide appeals where it is alleged there
is error in any order... made by an administrative official in the enforcement of this ordinance
or of any ordinance adopted pursuant thereto.” Doc. 30-2, p. 126 (Zon. Ord. § 363(a)(1)).

The Rainbow City Board of Adjustment heard New South’s appeal
and variance requests on July 6th. At the hearing, New South argued that
its applications were exempt from the Sign Regulations. The Chairman of
the Board, Rodney Prickett, stated that it was his understanding that
Rainbow City had enforced its prohibition against billboards for 20 years.
Prickett entertained a motion to approve the variance, but the motion
failed. (Doc. 13-8, pp. 1-2). So the Board affirmed the denial of New South’s
applications and denied its variance requests:
Rodney Prickett stated that it was his understanding that the prohibition against

statement that is included with his application for his request for a variance.
Bill Wilson, Owner of Rainbow Powder Coating at 1215 West Grand Ave was present
to speak in favor of the variance. Mr. Wilson made reference to 2 pre-existing
billboards and local business signage along West Grand near his business.
Bob McNeal expressed concerns of the lights from the signs effecting the apartment
complexes that are in close proximity to Kids Way. Mr. Bell explained that candle foot
could be adjusted. Mr. McNeal also addressed concerns with the signs causing a
distraction for drivers with the high volume of traffic through the area.
Rodney Prickett entertained a motion to approve the variance. The request for
variance died due to lack of motion.
New South first appealed the Board’s denial to the Circuit Court of
Etowah County, Alabama, Case No. ev-2021-900345. In Count One, it
appealed the Board’s decision under Ala. Code § 11-52-81. In Count Two,
it sought relief for violation of its constitutional rights. The parties agreed
that New South would dismiss Count Two from the state court action and
bring its constitutional challenge against Rainbow City in a separate
action—this action.
This Lawsuit: Plaintiffs sue Rainbow City here, alleging that the
City Sign Regulation provisions (§§ 211-214, 217, and 219) and the City
Zoning Ordinance provisions that applied to its variance applications
(Zon. Ord. §§ 368, 366) are speech restrictions that violate the United
States Constitution and Article I, Section IV of the Alabama Constitution.

(Doc. 1, p. 11). Plaintiffs argue these provisions are a nullity and an
invalid basis to disallow their signs:
• Section 213: “Signs Exempt from Sign Permits”
o Plaintiffs argue these provisions are content-based and fail
strict scrutiny;
• Section 212: Required Permits
o Plaintiffs argue these provisions are a prior restraint on free
speech that lacks procedural safeguards because city officials
are not limited by any time constraints when approving
required sign applications;
• Sections 213(1), (4), (11); Section 214(11); Section 217(b)
o Plaintiffs argue these provisions afford City officials
unbridled discretion to permit signs without reference to
objective standards;
• Sections 212(4), (6)
o Plaintiffs argue these provisions afford City officials power to
request “catch all” details to determine compliance;
• Section 366(a), Section 363(a)
o Plaintiffs argue these provisions afford City officials unlawful
and subjective discretion in the variance process.
(Doc. 1, pp. 11-13).4
Rainbow City moves for summary judgment (doc. 12), and Plaintiffs
move for partial summary judgment. (Doc. 29).
STANDARD OF REVIEW
Summary judgment is appropriate only when the moving party
shows there is no genuine issue of material fact, and the moving party is
entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). A fact is
material if it is one that might affect the outcome. Anderson v. Liberty

4 Although Plaintiffs also generally state in the complaint that Section 211 and 219 are
unconstitutional regulations, they fail to advance supporting arguments. So the court finds that
Plaintiffs have abandoned these claims.
Lobby, Inc., 477 U.S. 242, 248 (1986). To avoid summary judgment, the
nonmoving party must go beyond mere allegations to offer specific facts
creating a genuine issue for trial. Fed. R. Civ. P. 56(e); see also Anderson,
477 U.S. at 324. In reviewing a motion for summary judgment, this court
views the facts and draws all reasonable inferences in the light most
favorable to the non-moving party. See Cuesta v. Sch. Bd. of Miami-Dade
Cty., 285 F.3d 962, 966 (11th Cir. 2002).
DISCUSSION
I. Rainbow City’s Motion for Summary Judgment
Rainbow City says it denied all four of New South’s applications for
the same simple reason: Section 214 bans all billboards, and each
application sought to permit a billboard.5 Once the city determined that
the applications sought to permit a prohibited billboard, content didn’t
matter—making Section 212’s permit process and 213’s content-based
permit exemption list irrelevant.
Rainbow City bases its motion for summary judgment on three
grounds: (1) Plaintiffs were not injured by any time constraints or lack of
procedural safeguards, so they lack standing to challenge those Sign
Regulation provisions; (2) the Sign Regulations pass constitutional
muster because the reason for Plaintiffs’ denials is content-neutral and is
a reasonable time, place, and manner restriction on commercial speech;
and (3) the Supreme Court cases that govern this case also govern
Plaintiff’s claims under the Alabama Constitution. Because standing is a
jurisdictional requirement, the court starts with standing.
A. Standing
The federal Constitution limits federal courts’ subject matter
jurisdiction to “Cases” and “Controversies.” U.S. Const. Art. III, § 2.

5 A billboard is (a) a “sign” (i.e., a visible structure that would direct attention to a message or
product), (b) owned by the applicant, (c) erected for the purpose of selling or leasing or donating
the display space to an “advertiser” (i.e., an entity seeking to convey a visual message to the
public). See Section 211 definitions: billboard, sign, advertiser.
Standing “is the threshold question in every federal case, determining the
power of the court to entertain the suit.” “In the absence of standing, a
court is not free to opine in an advisory capacity about the merits of a
plaintiff’s claims” and “the court is powerless to continue.” Maverick
Media Grp., Inc. v. Hillsborough Cnty., Fla., 528 F.3d 817, 819 (11th Cir.
2008) (internal citations omitted).
To show standing, a plaintiff must prove three elements: (1) he
suffered an injury in fact; (2) the defendant caused that injury; and (3) a
favorable decision will likely redress the injury. Lujan v. Defenders of
Wildlife, 504 U.S. 555, 560 (1992). As the party invoking jurisdiction,
Plaintiffs bear the burden of proving that they have standing. Id. at 561.
In billboard litigation, a plaintiff only has standing to challenge provisions
of an ordinance that affect its activities, CAMP Legal Def. Fund, Inc. v.
City of Atlanta, 451 F.3d 1257, 1273 (11th Cir. 2006), and under which it
has personally suffered harm. Granite State Outdoor Advert., Inc. v. City
of Clearwater, Fla., 351 F.3d 1112, 1117 (11th Cir. 2003).
Rainbow City says Plaintiffs only have standing to challenge
Section 214’s billboard prohibition because Section 214 was the sole basis
for the city’s adverse decision. (Doc. 31, pp. 10-11). Plaintiffs disagree; so
the court considers the other provisions that Plaintiffs claim to have
standing to challenge.
i. Section 213 “Signs Exempt from Sign Permits”: Content-
Based Argument
Section 213 lists the content-based exemptions from Section 212’s
permit requirement. Plaintiffs argue that each of their signs fall within
Section 213’s list of “Signs Exempt from Sign Permits,” and inclusion on
this list shields their signs from Section 214’s ban on billboards. According
to Plaintiffs, Section 213 provides context to Section 214: if a proposed
sign displays permit-exempt content, then it doesn’t matter that the
content is presented on Section 214 prohibited mediums like billboards.
To determine if Plaintiffs are right, we start “with the text—and, if
we find it clear, we end there as well.” Heyman v. Cooper, 31 F.4th 1815,
1318 (11th Cir. 2022) (citing Young v. Grand Canyon Univ., Inc., 980 F.3d
814, 818 (11th Cir. 2020)).
Section 212 requires sign permits in Rainbow City:
Sec. 212. Required Permits, Fees, and Inspections.
(a) Except where this chapter explicitly exempts a sign, all signs erected shall require a sign
permit issued by the Zoning Administrator. In addition, whether a sign is exempt or not, city
building and electrical codes may require additional permits.
Section 213 states signs exempt from Section 212:
Sec. 213. Signs Exempt from Sign Permits.
The following signs are exempt from required sign permits and all associated fees, and are
permitted in accordance with the standards contained within this section and any other
applicable provisions of these sign regulations, All exempt signs are permitted in any district
if related to a permitted activity on a lot.

Section 214 lists prohibited signs:
Sec. 214. Sign Prohibitions.
Except where qualified below, the following signs are specifically prohibited throughout the
city:

(13) Billboards.

Combined, these sections are easy to understand: All signs require
a permit (Section 212), except those listed in Section 213. But no sign can
be erected if it’s a billboard (Section 214). So even though Section 214
comes last, it’s of primary importance: If a sign is “specifically prohibited
throughout the city,” it doesn’t matter whether its content could otherwise
be permitted. It cannot be erected.
Section 213—the content-based exemption list—supports this plain
reading when it says that listed signs are permitted “in accordance with

10

the standard contained within this section [Section 213] and any other
applicable provisions of these sign regulations.” In other words, fitting
within Section 213’s exemption list alone is not enough; the applicant
must fit within all other “applicable provisions,” including Section 214’s
outright ban on billboards.
The record supports only one conclusion: Rainbow City denied New
South’s applications because each sought to permit a billboard that was
prohibited under Section 214. So the city’s application of Section 214—
and Section 214 alone—caused Plaintiffs’ alleged injury. Section 213 was
irrelevant to the city’s decision, so Section 213 could not have caused
Plaintiffs’ alleged injury. That means that no matter how this court
interprets Section 213, the court’s interpretation cannot redress Plaintiffs’
injuries. So Plaintiffs lack standing to challenge Section 213.
ii. Section 212 Permitting Requirement: “Prior Restraint that
Lacks Procedural Safeguards” Argument
The Eleventh Circuit has found that when challenging the
constitutionality of a process or procedure (i.e., affording the city
unlimited time to make a decision), plaintiffs lack standing if they do not
link their injury to that process or procedure. See Ga. Elec. Life Safety &
Sys. Ass’n v. City of Sandy Springs, Ga., 965 F.3d 1270, 1279 (11th Cir.
2020); see also Granite State Outdoor Advert., Inc. v. City of Clearwater,
Fla., 351 F.3d at 1117 (finding that plaintiff suffered no injury where city
denied permits within a reasonable time: the same day they were
submitted).
Plaintiffs argue they have standing to challenge the lack of
procedural safeguards within the City’s Sign Regulations because, as
applied to them, Section 212 requires sign applicants to obtain permits
from City officials but contains no time limits on the initial decision-
making process. And Plaintiffs say they were injured by the lack of time
constraints because the City took almost two months to notify them that
it denied their applications and Plaintiffs could not post the signs during
those two months. (Doc. 35, pp. 12-14).
The two-month delay argument fails to confer standing for two
reasons. First, the City’s answer was always “no.” While it is true that the
City sent the written notice of denial to the email wrong address, and that
mistake put off Plaintiffs’ appeal for two months, the City denied the
applications within 3 days of their filing—i.e., from April 6 (filing) to April
9 (denial). So the argument that the mistaken email address caused a two-
month period of prohibition is factually incorrect. The April 9th decision
caused Plaintiffs’ injury during the first two months, not typing in the
wrong email address. Although the City did not deny the applications the
day they were submitted, see Granite State Outdoor Advert., Inc. v. City
of Clearwater, Fla., 351 F.3d at 1117, three days is nonetheless a
reasonable time.
Second, and more importantly, timeliness did not factor into the
City’s first or its final decision. When the email error was discovered, the
city promptly gave Plaintiffs appeal and variance forms, and the Board
heard Plaintiffs’ appeal. So Section 212’s provisions on time and procedure
did not cause Plaintiffs’ injury. As explained, only the City’s reading of
Section 214’s prohibition on billboards harmed Plaintiffs. So Plaintiffs
lack standing to challenge Section 212 on process or procedure grounds.
iii. Unbridled Discretion: No Objective Standards and Ability to
Request “Catch All” Details to Determine Compliance
The unbridled discretion doctrine is usually reserved for permitting
schemes where the official has the power to grant or deny a permit for
any reason or no reason at all. See Fort Lauderdale Food Not Bombs v.
City of Fort Lauderdale, 11 F.4th 1266, 1295 (11th Cir. 2021); see, e.g.,
Barrett v. Walker Cnty. Sch. Dist., 872 F.3d 1209, 1220 (11th Cir. 2017)
(“[T]he plainest example of an unconstitutional grant of unbridled
discretion is a law that gives a government official power to grant permits
but that provides no standards by which the official’s decision must be
guided.”); Forsyth Cnty. v. Nationalist Movement, 505 U.S. 123, 134
(1992) (“The fee assessed will depend on the administrator’s measure of
the amount of hostility likely to be created by the speech based on its
content. Those wishing to express views unpopular with bottle throwers,
for example, may have to pay more for their permit.”); Shuttlesworth v.
City of Birmingham, 394 U.S. 147, 150 (1969) (“For in deciding whether
or not to withhold a permit, the members of the Commission were to be
guided only by their own ideas of ‘public welfare, peace, safety, health,
decency, good order, morals or convenience.”’).
Plaintiffs allege that Rainbow City gave its official agent excessive
discretion in the Sign Regulations; and this excessive discretion hurt
Plaintiffs because a city official reviewed their applications and
determined the content did not meet plainly stated exemptions, resulting
in the signs not being posted for two years. (Doc. 35, pp. 12-14). Plaintiffs
argue these provisions afford city officials unbridled discretion to permit
signs without reference to objective standards:
Section 213(1):
(1) Historic markers. Where approved by the City Council.
Section 213(4):
(4) Flags. Any official flag ofa government entity and banners of a religious, charitable
or fraternal organization. This exemption shall include the supporting device or flag
pole. However, no property shall display more than four (4) flags without prior
approval from the City Council.
Section 213(11):
(11) Special event sign and decorations. A temporary or permanent sign indicating a
special event such as a grand opening, traveling public exhibits, fair, carnival, circus,
festival, personal announcements of births, marriages, birthdays, or similar events
may be erected on the lot where the event 1s to take place, provided that such signs
do not exceed the maximum applicable height and surface area requirements for the
type of sign used and the sign is installed not more than thirty (30) days prior to the
event and removed not more than ten (10) days after the event has occurred.
Decorative flags, banners, and bunting shall be allowed only for city-wide
celebrations, conventions, and commemorations when specifically authorized by the
Mayor and City Council. This exemption also shall apply to decorative lights and
displays celebrating any legal holiday.

13

Section 214(11):
(11) Portable signs, unless approved by the Zoning Administrator for a grand opening or
other special event, to be displayed only for the duration of the event.

Section 217(b):
(b) Freestanding signs. In zoning districts where freestanding signs are permitted, each lot of
record may have not more than one (1) freestanding sign. Freestanding signs shall be
securely fastened to the ground or to some other metallic or concrete supportive structure so
that there 1s no danger that either the sign or the supportive structure may be moved by the
wind or other forces of nature and cause injury to persons or property. The City Council
may approve one (1) additional freestanding sign for any existing lot of record that is
accessed by more than one collector or arterial street on opposing sides of the property.
Furthermore, if a development is located on a comer lot that has at least 100 feet of frontage
on each of the two intersecting public streets, then, the City Council may allow not more
than one freestanding sign along each side of the development bordered by such streets.
Freestanding signs shall be located as close a possible to the main traffic access to the
property, but shall not be located closer than four (4) feet to the nght-of-way of a public
street. In addition, no freestanding sign shall be located less than thirty (30) feet from
another freestanding sign on the same side of the street. All freestanding signs shall comply
with the following dimensional requirements.
Next, Plaintiffs argue these provisions afford City officials power to
request “catch all” details to determine compliance:
Section 212(A4):
(4) A complete description of the sign(s) to be erected, including, but not limited to
number, type, freestanding or attached, method of illumination, on or off-premises
display, and setbacks.

Section 212(6):
(6) Other details sufficient for the Zoning Administrator to determine compliance with
the requirements of this chapter.
The Eleventh Circuit has addressed similar challenges in several
cases in which plaintiffs alleged that certain sign ordinance provisions
granted unbridled discretion and lacked procedural safeguards. The
Circuit has found that plaintiffs have standing to challenge the overbroad
provisions if the city used those provisions to deny their permits. See

14

Granite State Outdoor Advert., Inc. v. City of Fort Lauderdale, 194 F.
App’x 754, 758 (11th Cir. 2006); Tinsley Media, LLC v. Pickens Cnty., Ga.,
203 F. App’x 268, 272 (11th Cir. 2006); Advantage Advert., LLC v. City of
Hoover, Ala., 200 F. App’x 831, 835 (11th Cir. 2006) (finding that a
plaintiff attempting to erect off-premises billboards lacked standing to
challenge the lack of procedural safeguards and permitting requirements
because the ordinance prohibited all off-premises signs and billboards);
Granite State Outdoor Advert., Inc. v. City of Clearwater, Fla., 351 F.3d at
1117; Maverick Media Grp., Inc., 528 F.3d at 823.
But the Circuit has also found that, even if the Court finds some
provisions unconstitutional, there is no redressability if an independent
provision would still prevent the challenged activity. For example, in
Granite State Outdoor Advert., Inc. v. City of Fort Lauderdale, the City of
Fort Lauderdale denied Granite State’s sign permit applications because
the City did not permit “outdoor advertising display signs and billboards”
under § 47–22.11(E) of its sign ordinance. Granite State Outdoor Advert.,
Inc. v. City of Fort Lauderdale, 194 F. App’x at 755. Granite State sued,
challenging the constitutionality of the entire sign ordinance (both facially
and as applied). Among many other challenges, it said the ordinance
granted city officials unbridled discretion and lacked procedural
safeguards. The district court found that Granite State lacked standing to
challenge any provision other than § 47–22.11(E). Id. The Eleventh
Circuit affirmed, finding that Granite State lacked standing to challenge
the unbridled discretion of city officials because (a) it had not established
that its displays were governed by those provisions and (b) it was not
subject to those provisions because its displays were categorically
prohibited as billboards. Id. at 758. Lastly, the court found that Granite
State lacked standing to challenge several provisions as prior restraints
because even if those exemptions were struck as unconstitutional, Granite
State still would be unable to erect a billboard because of § 47–22.11(E)’s
prohibition. Id. So Granite State could not establish that a favorable
decision would redress its injury.
The Circuit came to a similar result in Tinsley Media, LLC v.
Pickens Cnty., Ga. In Tinsley, Pickens County denied eleven of Tinsley’s
sign permit applications because billboards were prohibited under its
1999 ordinance. Tinsley sued, challenging the constitutionality of the
billboard prohibition and over 40 other exceptions within the ordinance,
and argued that the ordinance lacked several procedural safeguards.
Tinsley, 203 F. App’x at 271. The court found that Tinsley had standing to
challenge the prohibition on billboards but lacked standing to challenge
the other exceptions or the lack of procedural safeguards. The court
reasoned that Tinsley failed to satisfy the “redressability” requirement of
standing because even if the court declared the exceptions
unconstitutional, the County’s billboard prohibition would remain. Id. at
274.
Here, Plaintiffs’ unbridled discretion arguments fail to confer
standing for the same reasons. First, and most obvious, even if this court
found that certain sections give city officials too much discretion, Section
214 independently prevents Plaintiffs from erecting billboards, so any
court ruling that other provisions are overbroad would not redress
Plaintiffs’ injury. Granite State Outdoor Advert., Inc. v. City of Fort
Lauderdale, 194 F. App’x at 758; Tinsley, 203 F. App’x at 274. Setting that
aside, Plaintiffs submitted applications for signs that they say fall into
these categories: Section 213(4) flags (less than four); Section 213(5)
artistic displays; Section 213(9) political signs; and Section 213(11) special
event signs. None of these signs fall into sections giving City officials
discretion, so Plaintiffs cannot show they were subject to unbridled
discretion in these provisions.6 Nor can Plaintiffs show they were subject
to Section 214(11) because they did not apply for portable sign permits
under this provision. Finally, while Plaintiffs’ applications were for
freestanding signs, Plaintiffs have not shown they were subject to Section
217(b)’s provisions affording City officials discretion or that they were
injured by City officials applying such discretion to their sign applications.

6 The portion of Section 213(11) granting City officials discretion is limited to decorative flags,
banners, and bunting—it does not apply to special event signs.
For all of these reasons, Plaintiffs have failed to show that any of these
provisions caused them injury.
Next, Plaintiffs allege that Sections 212(4) and (6) afford City
officials power to request “catch all” details to determine compliance with
the Sign Regulations. Plaintiffs say they submitted sign permit
applications containing all materials that the Regulations required. (Doc.
1, p. 5). But Plaintiffs provide no support that City officials denied their
sign applications because they relied on a “complete description” or “other
details” required for the applications to be approved or denied. The only
evidence that either party provides in the record as the City’s basis for
denying Plaintiffs’ sign applications is Section 214’s billboard ban. So
Plaintiff has failed to show that Section 212(4) and (6)’s requirements
caused them an injury. And even if Plaintiffs showed any injury from
these provisions that the court found unconstitutional, Plaintiffs cannot
show redressability because they would still be subjected to the City’s
billboard ban. See Granite State Outdoor Advert., Inc. v. City of Fort
Lauderdale, 194 F. App’x at 758; see also Granite State Outdoor Advert.,
Inc. v. Cobb Cnty., Ga., 193 F. App’x 900, 906 (11th Cir. 2006). So
Plaintiffs’ standing argument for these provisions fails.
iv. Unbridled Discretion: Zoning Board of Adjustment Variance
Process
Plaintiffs argue that Sections 366(a) and 363(a) afford City officials
unlawful and subjective discretion in the variance process, allowing the
Board to authorize variances if certain conditions are met, but not
mandating that they do so. For example, Plaintiffs say officials can deny
variances if they find the variance would be “contrary to the public
interest” or against the “spirit of th[e] ordinance.”
Section 366(a) says:
Sec. 366. Variance procedures.
(a) Justification for variance. Variances to the terms of this ordinance may be granted in
specific cases upon a finding by the Board of Adjustment that the variance will not be
contrary to the public interest, that, owing to special conditions, a literal enforcement of the
provisions of this ordinance will result in unnecessary hardship, and that the spirit of this:
ordinance shall be observed and substantial justice done. More specifically, the Board shall
determine all of the following criteria have been satisfied:
Section 363(a) says:
Sec. 363. Powers and Duties.
(a) The Board of Adjustment shall have the following powers:
(1) To hear and decide appeals where it is alleged there is error in any order,
requirement, decision, or determination made by an administrative official im the
enforcement of this ordinance or of any ordinance adopted pursuant thereto;

(3) To authonze upon appeal in specific cases such variance from the terms of the
ordinance as will not be contrary to the public interest, where, owing to special
conditions, a literal enforcement of the provisions of the ordinance will result in
unnecessary hardship and so that the spirit of the ordinance shall be observed and
substantial justice done.
Again, even if the court found these provisions unconstitutional,
Plaintiffs have failed to present evidence that the Board denied their
variance applications because of any discussion that their applications
were “contrary to the public interest” or against the “spirit of the
ordinance.” The Board denied the variance application because of the
billboard ban.’ Plaintiffs cannot show that the discretion baked into
Sections 863 and 366 could result in unlawful favoritism, nor have they
shown that those sections have resulted in a “pattern of unlawful
favoritism.” Granite State Outdoor Advert., Inc. v. City of St. Petersburg,
Fla., 348 F.3d 1278, 1282 (11th Cir. 2008). So Plaintiffs have not met their
burden of showing that these provisions caused their injury or that a

7 See supra at 6. Another board member expressed concerns about lights affecting a nearby
apartment complex and distracting drivers in a nearby high-traffic area. (Doc. 13-3, pp. 1-2).

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finding that the provisions are unconstitutional would redress that
injury.8
v. Facial Challenges
“[W]hen a licensing statute allegedly vests unbridled
discretion in a government official over whether to permit or
deny expressive activity, one who is subject to the law may
challenge it facially without the necessity of first applying for,
and being denied, a license.” City of Lakewood v. Plain Dealer
Publ’g Co., 486 U.S. 750, 755–56, 108 S.Ct. 2138, 2143, 100
L.Ed.2d 771 (1988). “If it is one who is subject to, or
imminently will be subject to, the provisions that allegedly
grant unbridled discretion, then [the plaintiff] has standing
to challenge these provisions.” CAMP, 451 F.3d at 1274
(internal quotation omitted).
Advantage Advert., LLC, 200 F. App’x at 835. That said, a plaintiff can
only bring facial challenges to provisions under which he has allegedly
sustained an injury in fact. Id. at 833; CAMP, 451 F.3d at 1271.
Plaintiffs say even if they weren’t injured by lack of time constraints
or unbridled discretion to City officials, they have standing to challenge
the Sign Regulation provisions facially because their existence injures
local citizens by intimidating them into censoring their own speech. (Doc.
35, pp. 14-17). But Plaintiffs’ standing to raise a facial challenge is not
absolute; Plaintiffs still must show that they are subject to the
discretionary ordinance they seek to facially challenge. See Granite State
Outdoor Advert., Inc. v. City of Fort Lauderdale, 194 F. App’x at 757;
Advantage Advert., LLC, 200 F. App’x at 833; Granite State Outdoor
Advert., Inc. v. City of Clearwater, Fla., 351 F.3d at 1118.

8 Even if Plaintiffs presented evidence that the Board denied their variance applications because
they were “contrary to the public interest” or “against the spirit of the ordinance,” Plaintiffs
provide no binding or persuasive case law to support that these types of determinations are
unconstitutional variance procedures. And the court finds none.
As stated throughout, Plaintiffs have failed to show that they—or
any other plaintiff who seeks to erect a billboard in Rainbow City—would
be injured by application of the unbridled discretion provisions that they
challenge. All evidence points to Section 214’s prohibition on billboards as
the sole cause of Plaintiffs’ injury in this and future cases involving
billboard applications. So no federal court decision on provisions other
than Section 214 would redress Plaintiffs’ injury. Even if the court found
any other challenged provision unconstitutional, Plaintiffs are still unable
to post their signs under Section 214(13)’s billboard ban (which Plaintiffs
do not challenge). See KH Outdoor, L.L.C. v. Clay Cnty., Fla., 482 F.3d
1299, 1303 (11th Cir. 2007) (finding challenge to other provisions of an
ordinance non-redressable where an unchallenged provision of the
ordinance caused denial of the billboard application); see also New S.
Media Grp., LLC v. City of Huntsville, Ala., No. 5:20-CV-2050-LCB, 2021
WL 5822133, at *13-14 (N.D. Ala. Oct. 1, 2021). So the court agrees with
Rainbow City that Plaintiffs lack standing to bring each of these
constitutional challenges.
—
In sum, Rainbow City’s reading of Section 214’s billboard ban
caused Plaintiffs’ injury. Plaintiffs do not argue that Section 214’s
billboard ban is unconstitutional. So this court cannot redress Plaintiffs’
injury, thus stripping Plaintiffs’ standing.
Perhaps Plaintiffs will challenge the City’s reading of Section 214
(as opposed to its constitutionality) in state court. But, based on the way
this case has been pleaded and litigated, this federal court lacks
jurisdiction to make that call.
CONCLUSION
For the reasons stated within, the court GRANTS IN PART
Rainbow City’s Motion for Summary Judgment (doc. 12) and DENIES
Plaintiffs’ Motion for Partial Summary Judgment as MOOT. (Doc. 29).
The court will enter a separate order consistent with this memorandum
opinion that dismisses this case WITHOUT PREJUDICE.
DONE and ORDERED on March 11, 2024.
Lee fe Hey
/
COREY'‘L. MAZE
UNITED STATES DISTRICT JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9992051. Public record. Not legal advice.