Petition for Writ of Certiorari — Granite State Outdoor Advertising, Inc. v. City of Clearwater
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supreme Court, U.¢
fh) FILES
03156 4 MAY 18 2004
No.
IN THE
Supreme Court of the United States
GRANITE STATE OUTDOOR ADVERTISING, INC., PETITIONER
Vv.
CITY OF CLEARWATER, FLORIDA,
BRIAN AUNGST, SR., AS AN INDIVIDUAL AND IN
HIS CAPACITY AS MAYOR OF THE CITY, WILLIAM HORNE,
AS AN INDIVIDUAL AND IN HIS CAPACITY AS CITY MANAGER
PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
PETITION FOR A WRIT OF CERTIORARI
EK. ADAM WEBB
Counsel of Record
WEBB & PORTER, L.L.C.
2625 Cumberland Parkway, S.E.
Suite 220
Atlanta, Georgia 30339
(770) 444-0773
Attorney for Petitioner
LI IT IT I TELE LT ETE DLLME PRA, AO SE!
CURRY & TAYLOR @ WASH D.C. @ (202) 223-3160 @ USSCINFO.COM
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QUESTIONS PRESENTED
The City of Clearwater, Florida’s sign
regulations prevent the posting of nearly all signs
without first obtaining a permit from City officials.
Pursuant to the sign regulations’ licensing scheme,
Clearwater officials are free to delay responding to
such applications for an indefinite time. Based upon
Petitioner’s overbreadth challenge to the sign
regulations, the district court invalidated severa]
unconstitutional restrictions on signs. On appeal, the
Eleventh Circuit Court of Appeals held that a party
challenging a regulatory scheme can only challenge
those individual sections of an ordinance that directly
caused actual injury. Thus, the Eleventh Circuit’s
. decision deniea overbreadth Standing to challenge any
provision other than those cited by the government in
denying the permit. Asa result of this decision, several
indisputably unconstitutional speech restrictions were
re-imposed on the citizens and organizations of
Clearwater.
rn
1. Whether the Eleventh Circuit Court of Appeals
eviscerated the overbreadth standing doctrine in First
Amendment challenges by restricting overbreadth
standing to only the discrete, individual provisions of a
regulatory scheme under which the challenger suffered
“actual injury.”
z. Whether a party must demonstrate actual injury
in order to raise a facia] challenge to speech regulations
under the overbreadth doctrine.
3. Whether district courts Should be prohibited
from invalidating unconstitutional regulations of First
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Amendment activity simply because the party
challenging the offensive restrictions did not suffer
“actual injury” based upon the enforcement of such
restrictions.
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PARTIES TO THE PROCEEDING AND
CORPORATE DISCLOSURE STATEMENT
The parties to the proceeding are properly
set forth in the case caption. Petitioner Granite
State Outdoor Advertising, Inc. has no parent
corporation and no publicly held company owns
ten percent or more of the corporation’s common
stock.
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TABLE OF CONTENTS
Page
QUESTIONS PRESENTED .........cssscsssssssssceeeecsssrseserseesesesseenees i
LIST OF PARTIES AND RULE 29.6 LIST ...........csscsssssseeeees ill
TABLE OF CONTENTS sveenussuaennsseovonvoquesseysnesonconsvdoosenssnssnsese dW
TABLE OF AUTHORIT1Biiscccsevcesscsvivrisecesereeniqanssesnesevsanwenens V
GREMIOIE TEL cinieciersiccrssnvcienarteenimmnnintgunvennannwin 1
FUT TI oviictctvtistantirncncintmnnninmnniviinnanenion 1
STATUTORY PROVISIONS INVOLVED.........cscssssssssscssssseees 1
UR TIINS svccecssihiteecsscteritiinnisicniinianninnianiinmnmvnmuiains 2
REASONS FOR GRANTING THE PETITION ........s0ssseeesseesees 6
CROCE IIIA ccccinnersievstininssninnsiniinsnmninitinninviniaunmaiiaiinnis 23
APPENDIX
CIRCUIT COURT ORDER, wccccvcsccsciscnrsesesenesssessnetiniesonts la
PSTRICT COURT ORDER, oacicescesvniciveseosssvsnercessrsecnionts 16a
ORDER DENYING REHEARING ........cccccsssceccessscceees 140a
V
TABLE OF AUTHORITIES
Page
CASES
11126 BALTIMORE BLVD., INC. v. PRINCE
GEORGE'S COUNTY, 58 F.3D 988, 994 (4TH CIR.
SO CII snincstsahetcncinciceatiete Dee a ».. 20-21
ACKERLEY COMMUNICATIONS OF MASS., INC. Vv.
CITY OF CAMBRIDGE, 88 F.3D 33 (1ST CIR. 1996)........ 16
ARIZONA RIGHT TO LIFE POLITICAL ACTION
COMM. V. BAYLESS, 320 F.3D 1002, 1006-07 (9TH
Rt I tcisscdieahentsneliniaia tdi tuataue tae ae ae 16
ASHCROFT V. FREE SPEECH COALITION, 535 U.S.
SI IUD ctsininicsuclaiscnns cael 7,18
BOARD OF TRUSTEES V. Fox, 492 U.S. 469; 484
SE RI eI E AS EE ih ean 11-12, 19
BROADRICK V. OKLAHOMA, 413 U.S. 601, 612
fa | Se OO TORN NCEE aay, passim
BURSON V. FREEMAN, 504 US. 191, 210, N. 13
RU ivecnhicciniliiclclaiaiiaiaecai let id ee A een 19
CITY OF LAKEWOOD V. PLAIN DEALER PUBL'G
Co., 486 U.S. 750, 755-56 (1988)....cccccccecec0-«. 11, 20, 21, 22
DAMBROT V. CENTRAL MICH. UNIV., 55 F.3D 1177,
Le | en ee Tn 16
vil
DEJA VU OF NASHVILLE, INC. V. METROPOLITAN
GOv'T OF NASHVILLE AND DAVIDSON COUNTY,
274 F.3D 377, 385 (6TH CIR. 2001), CERT.
DENIED, 535 U.S. 1073 (2002) ..........ssssssssserseereerseesenseees 16
DESERT OUTDOOR ADVER., INC. V. CITY OF
MORENO VALLEY, 103 F.3D 814, 818 (9TH CIR.
FORSYTH COUNTY V. NATIONALIST MOVEMENT,
505 U.S. 128, 188, N. 10 (1992)......c.cccccrccrrcesseccssroeces 21-22
GIOVANI CARANDOLA, LTD. V. BASON, 303 F.3D
507, 512-51 (4TH CIR. 2002).........cccccsccereesreeserseresserseees 16
GRANITE STATE OUTDOOR ADVER., INC. V. CITY
OF ST. PETERSBURG, 348 F.3D 1278 (11TH CIR.
2003), PETITION FOR CERT. FILED, 72 U.S.L.W.
3644 (U.S. MAR 29, 2004) .....sccrssccsssccsscssccsrscocccesseessensees 22
GRANITE STATE OUTDOOR ADVERTISING, INC. V.
CITY OF CLEARWATER, 213 F.SUPP.2D 1312
CBD... PUA. BOOB) necvescrveccsesesesscsssvvovsovevensoonvetenseessatovsseossere 1
GRANITE STATE OUTDOOR ADVERTISING, INC. V.
CITY OF CLEARWATER, 351 F.3D 1112 (11TH
CFR, BB vecexeitnsccscisansssinseininveenntensatimnemamniamniie 1
GRIFFIN V. SECRETARY OF VETERANS AFFAIRS,
288 F.3D 1309, 1818-19 (D.C. CIR. 2002) .......ceseeeeeeeeee 22
INTERNATIONAL SOCIETY FOR KRISHNA
CONSCIOUSNESS V. EAVES, 601 F.2D 809, 823
CBG CUR, BIT D) vceecisineieeeeniensiconieverionsminsnanimesiteateaiinininsicitie 22
vii
LAMAR ADVER. OF PENN, LLC v. TOWN OF
ORCHARD PARK, 356 F.3D 365, 374-75 (2D CIR.
Ree Ra ae RN Sa NI oS EN he 16
TUTE F vininhecsticaitumnesstciiesinitinniniibinihiteeuabanietelelaiasuisnniniinsses 22
MEMBERS OF CITY COUNCIL V. TAXPAYERS FOR
VINCENT, 466 U.S. 789, 801 (1984)......ccccccccccccsesesseseseee. 18
METROMEDIA V. CITY OF SAN DIEGO, 453 U.S.
Ae Lt __; ar eTEn passim
MIAMI HERALD, INC. v. CITY OF HALLANDALE,
734 F.2D 666, 674, N. 4 (ITH CIR. 1984) ...cececcccsccsccssece. 22
NATIONAL ADVER. Co. V. TOWN OF BABYLON,
900 F.2D 551, 553, 555 (2D CrR. 1990), CERT.
DENIED, 492 U.S. 852 (1990)........cccccccsccscscscesccsceeseessesees 16
NORTH CAROLINA RIGHT TO LIFE, INC. V.
BARTLETT, 168 F.3D 705, 710 (4TH CIR. 1999),
CERT. DENIED, 528 U.S. 1153 (2000) oon... cecccececcccccsesseeee 20
PEACHLUM V. CITY OF YORK, 333 F.3D 429, 430
tT IT LT HO ee 16
RAPPA V. NEW CASTLE COUNTY, 18 F.3D 1043
Pa iissiiticiiiicencinne cane iia ha 16
RENO V. ACLU, 521 U.S. 844, 861-62, NN. 27-28
SIT Manse diaciiccisisteinsticiain econo stenesraiiovenntensebvienteiens 7, 19-20
RILEY V. NATIONAL FED'N OF THE BLIND, 487
EE Pes nisin ee 21
a a ee
viii
SCHAD V. BOROUGH OF MOUNT EPHRAIM, 452
| RIC aaa eNO te ae an 9,18
SHUTTLESWORTH V. CITY OF BIRMINGHAM, 394
er Oe RTT EY 22
~ SMITH Vv. CALIFORNIA, 361 U.S. 147, 151 (1959)........ 10, 19
SOUTHWORTH V. BOARD OF REGENTS, 307 F.3D
566, 577-78 (TTH CIR, 2002) ......cccccrscccscescesescoscsseressereeees 22
THOMAS V. CHICAGO PARK DIST., 534 U.S. 316, |
ee TE teiivvisacinavisiseraeinitinninidibabiepateaitigiiaasinabdcianiiati 21, 22
THORNHILL V. STATE OF ALABAMA, 310 U.S. 88,
EN EN tN ae 10, 11, 19
UNITED STATES V. RAINES, 362 U.S. 17, 22-3
bE NTE NTT MONTE ED 10,19
VIRGINIA SOCIETY FOR HUMAN LIFE, INC. V.
FEDERAL ELECTION COMM'N, 263 F.3D 379,
388 (4TH CIR. 2001)
VIRGINIA V. AMERICAN BOOKSELLERS ASS'N,
INC., 484 U.S. 383, 392 (1988) .......cccscesscseeee 9,10, 18, 19
WARTH V. SELDIN, 422 U.S. 490, 500-01 (1975) ........... 9,10
)
So
Oe ee a ee
Z.J. GIFTS D-4, L.L.C. Vv. CITY OF LITTLETON, 311
F.3D 1220, 1226-27 (10TH CIR. 2002), CERT.
GRANTED IN PART, 124 S.CT. 388.........ccccssscsssscssssssseeees 21
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SUP a te MT pike ibeaincielile ee 1
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OPINIONS BELOW
The opinion of the three-judge panel of the
Eleventh Circuit Court of Appeals is reported as
Granite State Outdoor Advertising, Inc. v. City of
Clearwater, 351 F.3d 1112 (11 Cir. 2003).! The opinion
of the district court is reported at Granite State
Outdoor Advertising, Inc. v. City of Clearwater, 213
F.Supp.2d 1312 (M.D. Fla. 2002).
JURISDICTION
The Court of Appeals entered judgment on
November 28, 2003. A petition for rehearing and
hearing en bane was denied on February 18, 2004.
(140a-141a). The Court of Appeals had jurisdiction
pursuant to 28 U.S.C. § 1291. Jurisdiction in the Court
is invoked pursuant to 28 U.S.C. § 1254(1).
STATUTORY PROVISIONS INVOLVED
The First Amendment to the Constitution of the
United States provides that “Congress shall make no
law ... abridging the freedom of speech or of the press
”
Section 1983 of Title 42 of the United States
Code states that any person that “subjects, or causes to
be subjected, any citizen of the United States or other
person within the jurisdiction thereof to the deprivation
of any rights, privileges, or immunities secured by the
' The Appendix attached hereto includes the circuit court decision
(la-15a), and the district court decision (16a-139a).
aa eee
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Constitution and laws, shall be liable to the party
injured in an action at law, suit in equity, or other
proper proceeding for redress.”
STATEMENT
I. OVERVIEW OF THE CASE
The Eleventh Circuit Court of Appeals reversed
the district court’s grant of overbreadth standing to
Petitioner Granite State Outdoor Advertising, Inc.
(“Granite State”) to challenge the City of Clearwater,
Florida’s (“City”) sign regulations. In doing so, the
Court of Appeals held that a party asserting standing
under the overbreadth doctrine in First Amendment
challenges to comprehensive regulatory schemes, such
as the City’s sign regulations (“Sign Ordinance”), is
limited to challenging only those individual provisions
of the scheme under which the challenger suffered
actual injury. This decision is contrary to the Supreme
Court’s repeated holdings regarding overbreadth
standing to challenge ordinances on First Amendment
grounds. The Eleventh Circuit’s decision eviscerates
the Court’s overbreadth doctrine in free speech cases
by restricting such challenges to only the specific
provisions under which a challenger demonstrates
actual injury. The Eleventh Circuit’s restriction on
overbreadth standing (1) eliminates review of
regulatory schemes as being overbroad in practical
application, (2) prevents trial courts of the Eleventh
Circuit from invalidating plainly unconstitutional
restrictions on protected speech unless a challenger can
establish actual harm under an offensive provision, (3)
requires a multiplicity of lawsuits to invalidate
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constitutionally repugnant regulatory schemes, and (4)
denies standing to parties willing to make constitutional
challenges that other parties injured by
unconstitutional regulations may be unable or unwilling
to raise.
II. FACTUAL BACKGROUND OF THE CASE
Granite State is in the business of developing
sign locations to be used for the dissemination of both
commercial and noncommercial speech. (2a). Granite
State entered into eight leases with owners of real
property in the City. (8a). Each of these leases allowed
Granite State to post a sign on the property. Id.
Granite State applied to the City for permission to post
a sign on each of the parcels. Jd. The City enforced its
Sign Ordinance to deny Granite State’s applications.
Id.
The Sign Ordinance creates a comprehensive
scheme for regulating the permitting, content,
placement, number, construction, size, height, design,
operation, and maintenance of signs within the City.
Id. Anyone wishing to post a sign in the City must first
obtain prior approval of City officials. (22a-23a). No
sign may be posted until such approval is received.
(22a-28a, 76a, 136a).
The Sign Ordinance imposes no brief, specified
time limits on the City to act on a sign application.
(22a-23a, 92a-97a, 137a-138a). If the City denies an
application, an appeal is allowed to the City’s
Community Development Board, but that Board does
not have to act on the appeal; no time limits are
imposed to constrain the Board’s deliberations should it
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choose to decide an appeal. (22a-23a, 129a-132a). If
such an appeal is granted and later denied, an
unsuccessful applicant may then appeal to a City
hearing officer. (23a, 129a, 182a-133a). Again, no action
is required within any specified period by this hearing
officer. (132a-133a). The Sign Ordinance fails to afford
unsuccessful applicants access to prompt judicial
review. (79a-99a, 129a-133a, 135a-138a)
The Sign Ordinance itself is filled with various
restrictions, exceptions, and preferences for certain
types of signs and messages displayed on signs.
Certain hand-carried banners visible from the right-of-
way are prohibited; certain window signs are
prohibited; signs not deemed acceptable under the
statute are prohibited. Descriptions of the favored and
disfavored categories of signs extend for several pages |
of the ordinance. (82a-84a, 86a-9la). In addition, :
certain specific messages are allowed, including .
messages for grand openings, construction, “art work,” :
and real estate sales, but the City has complete
discretion to decide whether a specific sign falls within
one of these favored categories. (87a-88a, 90a). The
City renders its decisions regarding such signs on a
“case by case” basis without further guidance. (59a).
ee ee
Signs carrying messages regarding politics are
subject to additional restrictions. (54a-57a, 90a). They
may not be posted more than 60 days before an election
and are limited in size depending on where they are
posted. Jd. Signs regarding stances on political issues
are not allowed unless specifically permitted by the
City. (84a, 90a).
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The City also uses “zoning districts” to decide
where and of which type signs may be posted in the
City. (92a-97a). The City has broad discretion in
making these decisions, and again the appeal process
for adverse decisions does not require that the City act
within certain time constraints, or even at all. (22a-23a,
129a-133a). The City even has subjective discretion to
decide whether it will allow signs on public property, if
it determines that the sign “serv[es] a significant public
purpose.” (60a, n. 43, 77a, 96a).
The City may allow signs that do not comply
with the terms of the Sign Ordinance if City officials
determine that the sign will meet their own subjective
criteria, such as it “shali not have an adverse impact on
the community character of the City of Clearwater.”
(99a). No narrow, objective standards guide the City’s
discretion.
Ill. PROCEEDINGS BELOW
Granite State challenged the coustitutionality of
the Sign Ordinance after the City denied its
applications for permits to erect signs. (3a). Granite
State raised challenges to the entirety of the ordinance
and the licensing scheme contained in the ordinance.
(3la-33a). In addition to granting Granite State as-
applied standing, the district court determined that
Granite State could facially challenge the entirety of
the Sign Ordinance by application of the overbreadth
doctrine. Jd. The trial court specifically found that the
Sign Ordinance “when applied to speech, in the form of
signs, may effectively chill First Amendment rights.”
(33a). After making this determination, the district
court struck several patently unconstitutional sections
of the Sign Ordinance challenged by Granite State.
(5la-52a, 56a-59a),
The Eleventh Circuit reversed the district court
and found that Granite State did not have standing to
challenge the entirety of the Sign Ordinance. (12a-13a).
Under the Circuit Court’s reading of the overbreadth
doctrine, overbreadth standing is limited to only those
discrete provisions of a regulation under which a
challenging party can demonstrate actual injury. (4a).
By reversing the finding of overbreadth standing, the
Eleventh Circuit reinstated the unconstitutional
provisions of the Sign Ordinance that had been
invalidated by the trial court. Granite State petitioned
for rehearing and rehearing en banc and was denied.
(140a-141a).
_ REASONS FOR GRANTING THE PETITION
Supreme Court Rule 10 identifies considerations
used by the Court in deciding whether to exercise its
discretion to grant a petition for writ of certiorari. One
consideration is that a “United States court of appeals
has decided an important question of federal law .. .
that conflicts with relevant decisions of this Court.”
Another consideration is that a “United States court of
appeals has entered a decision in conflict with the
decision of another United States court of appeals on
the same important matter... .” Finally, the Court
considers whether the court of appeals decision “has so
far departed from the accepted and usual course of
judicial proceedings . . . as to call for an exercise of this
Court’s supervisory power... .”
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In this case, the petition should be granted under
all of Rule 10’s criteria set forth above. Most
significantly, the Clearwater decision flatly contradicts
this Court’s overbreadth standing doctrine in First
Amendment cases. The Eleventh Circuit’s new
definition of overbreadth standing extends only to a
discrete provision of a regulatory scheme under which a
challenger can establish as-applied standing. This new
definition conflicts with the Court’s well established
precedent that litigants may facially “challenge a
statute not because their own rights of free expression
are violated, but because of a judicial prediction or
assumption that the statute’s very existence may cause
others not before the court to refrain from
constitutionally protected speech or expression.”
Broadrick v. Oklahoma, 413 U.S. 601, 612 (1973)
(emphasis added); see also Ashcroft v. Free Speech
Coalition, 5385 U.S. 284, 245 (2002); Reno v. ACLU, 521
U.S. 844, 861-62, nn. 27-28 (1997); Metromedia v. City of
San Diego, 453 U.S. 490, 504 n. 11 (1981) (allowing
billboard company to challenge entire sign ordinance
including content-based exemvtions which had no
application to the plaintiff). As shown below, there are
numerous other decisions of the Court and circuit
courts around the country with which the Clearwater
decision fundamentally conflicts.
The Eleventh Circuit’s decision will have at least
two profound, negative impacts on other federal
circuits should the decision remain intact. The first of
these is the high probability that federal courts in other
circuits will be repeatedly confronted with the
Clearwater decision as government defendants assert
that the overbreadth doctrine is restricted to only the
specific provisions under which a party can show actual
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harm. The other negative impact is the prohibition
imposed on the trial courts of the Eleventh Circuit to
invalidate obviously unconstitutional restrictions on
free speech unless a party can establish as-applied
standing to challenge every element of such
restrictions.
The risk that other federal and state courts may
adopt the Eleventh Circuit’s misinterpretation of the
overbreadth doctrine is too great to allow the decision
to remain uncorrected. The decision requires that
constitutional challenges to comprehensive regulatory
schemes that restrict speech must be made on a case-
by-case, provision-by-provision basis predicated on a
party’s ability to show actual injury. The Eleventh
Circuit’s decision effectively deprives private citizens,
businesses, and organizations of their ability to facially
challenge invalid regulatory schemes. The practical
effect of the Eleventh Circuit’s decision will be to
require a multiplicity of lawsuits: to invalidate
unconstitutional regulations on_ speech. This
requirement is, both cost prohibitive and overly
burdensome to potential plaintiffs and an enormous
waste of judicial resources. Knowing that their
regulations are insulated from facial challenges,
government entities will have little incentive to correct
unconstitutional regulatory schemes should the
Eleventh Circuit’s decision remain as an authoritative
interpretation of the overbreadth doctrine. The
petition for certiorari should therefore be granted.
n 7 ee ey ee ee ee - ”
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I. REVIEW IS WARRANTED BECAUSE THE
DECISION CONFLICTS WITH THE
COURT’S HOLDINGS REGARDING THE
OVERBREADTH STANDING DOCTRINE.
A. The Clearwater Decision Eviscerated
Overbreadth Standing.
The very purpose of the overbreadth standing
doctrine is to permit challenges to regulatory schemes
that infringe on First Amendment speech rights even
when the party before the court has not suffered injury
from every one of the challenged portions of the
regulatory scheme. See Metromedia, 453 U.S. at 493
(plurality of Justices White, Stewart, Marshall, and
Powell), 525 (concurrence of Justice Brennan joined by
Justice Blackmun); see also Schad v. Borough of Mount
Ephraim, 452 U.S. 61, 66 (1981) (allowing overbreadth
challenge to municipal zoning ordinance); Virginia v.
American Booksellers Ass’n, Inc., 484 U.S. 383, 392
(1988) (holding that “threatened or actual injury
resulting from the putatively illegal action” confers
standing); Warth v. Seldin, 422 U.S. 490, 500-01 (1975)
(same). Simply put, a party that has suffered injury
from some portion of a First Amendment regulatory
scheme has standing to challenge both that section and
other invalid sections under which it has not suffered
direct injury because of the overbreadth standing
doctrine.
The Circuit Court correctly recognized that
Granite State had suffered actual injury under
subsection 3-1806.B.1 of the City’s regulatory scheme.
(6a-7a). Accordingly, Granite State had direct standing
to challenge that portion of the ordinance. Id.
[a
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However, the Court of Appeals ignored numerous
precedents from this Court in concluding that Granite
State did not have standing to challenge the other
unconstitutional portions of the ordinance at issue. /d.
Once actual injury is established under one
portion of the ordinance, it is both common sense and
established law that a party has standing to challenge
additional portions of a comprehensive regulatory
scheme that restricts protected speech. Otherwise, the
overbreadth doctrine would be made a nullity, because
a party could never challenge any additional sections of
the ordinance without going through the same actual
injury analysis. The overbreadth doctrine would thus
be rendered an illusory standing doctrine offering no
greater scope than as-applied standing.
B. The Court Has Not Created An Illusory
Standing Doctrine. 7
Contrary to the Eleventh Circuit’s holding, this
Court has repeatedly recognized that “countervailing
considerations may outweigh” the actual injury
requirement for standing in a First Amendment case.
Warth, 422 U.S. at 500-01 (citing United States v.
Raines, 362 U.S. 17, 22-3 (1960) (emphasizing “that
where the application of [strict standing] rules would
itself have an inhibitory effect on freedom of speech,
they may not be applied,” citing Smith v. California,
361 U.S. 147, 151 (1959), and Thornhill v. State of
Alabama, 310 U.S. 88, 97-8 (1940)); also American
Booksellers, 484 U.S. at 392-93.
Oe LL a
Indeed, the Eleventh Circuit ignored the basic
underpinning of the overbreadth doctrine:
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In the area of freedom of expression it is
well established that one has standing to _
challenge a statute on the ground that it
delegates overly broad licensing
discretion to an administrative office,
whether or not his conduct could be
proscribed by a properly drawn statute,
and whether or not he applied for a
license.
City of Lakewood v. Plain Dealer Publ’g Co., 486 U.S.
750, 755-56 (1988). This Court has established that the
injury to be redressed by application of the
overbreadth doctrine is the removal of the pervasive
threat to First Amendment freedoms inherent in an
offensive regulations’ very existence, not the
remediation of any personal injury suffered by a
challenging party. Thornhill, 310 U.S. at 97. Granite
State made a facial First Amendment challenge to the
Sign Ordinance because the entire ordinance, and
portions of its constituent parts, prevented Granite
State and others from exercising fundamental speech
rights protected by the First Amendment. Such a
challenge is permitted under the Court’s standing rules
both because protection of First Amendment rights is
of paramount importance to a free society and because
such challenges vindicate the rights of third parties not
before the court.
The practical effect of the overbreadth doctrine
is “to enable persons who are themselves unharmed by
the defect in a statute nevertheless to challenge that
statute on the ground that it may conceivably be
applied unconstitutionally to others, in other situations
not before the Court.” Board of Trustees v. Fox, 492
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U.S. 469, 484 (1989) (quoting Broadrick, 413 U.S. at
610). This Court created the overbreadth doctrine to
eliminate the need for multiple lawsuits and to allow
plaintiffs to vindicate their constitutional rights without
subjecting themselves to penalties imposed under
unconstitutional laws. E.g., Ex Parte Young, 209 U.S.
123, 159-60 (1908). The Clearwater decision reverses
the Court’s rationai and would require multiple
lawsuits to evaluate unconstitutional ordinances on a
case-by-case, provision-by-provision basis.
The importance of the First Amendment in )
maintaining a free and open society gave rise to the |
Court’s overbreadth standing doctrine in the First |
Amendment arena because of the Court’s recognition of
the necessity and efficiency of permitting overbreadth |
challenges to comprehensive regulations that unduly |
restrict First Amendment rights. The Eleventh
Circuit’s Clearwater decision undermines the Court’s |
rationale and invites degradation of the Court’s
constitutional mandates.
C. Overbreadth Standing Allows A Party
With A Commercial Interest In Speech
Activity To Challenge All
Unconstitutional Provisions Of A
Regulatory Scheme, Even Those
Having No Practical Application To
The Challenging Party.
The Eleventh Circuit’s decision conflicts with
established Supreme Court precedent. E.g.,
Metromedia, 453 U.S. at 504 (recognizing billboard
company’s standing to assert facial challenge to all
provisions of San Diego’s comprehensive sign
NT
13
ordinance). Indeed, the Court of Appeals completely
ignored the Court’s Metromedia decision and failed
even to cite to Metromedia even though Metromedia
controls the law of signs, and especially billboards.
Metromedia, 453 U.S. at 501 (reiterating that “[ea}ch
method of communicating ideas is a law unto itself”)
(cit. omitted). The Eleventh Circuit’s disregard for the
law established by the Court is exacerbated by the fact
that the district court specifically referred to the
Court’s Metromedia decision in conferring overbreadth
standing on Granite State to facially challenge the sign
regulations. (29a-3la). In reversing the district court,
the Court of Appeals simply ignored any reference to
the Metromedia decision.
In Metromedia, the Court _ specifically
established sign companies’ standing to facially
challenge the entirety of unconstitutional sign
ordinances reaffirming that
we have never held that one with a
“commercial interest” in speech also
cannot challenge the facial validity of a
statute on the grounds of its substantial
infringement of the First Amendment
interests of others. Were it otherwise,
newspapers, radio stations, movie
theaters and producers — often those with
the highest interest and the largest stake
in a First Amendment controversy -
would not be able to challenge
government limitations on speech as
substantially overbroad.
14
Id. at 504, n. 11. Six Justices unconditionally joined the
Court’s holding establishing a sign company’s ability to
facially challenge the entirety of a sign ordinance under
the overbreadth doctrine. Jd. at 493 (holding of
plurality composed of Justices White, Stewart,
Marshall, and Powell); id. at 525 (concurrence of Justice
Brennan joined by Justice Blackmun) (specifying that
“(wlhere the plurality and I disagree is . . . the
appropriate analytical framework to apply”). As is
clear, there can be no doubt that a clear majority of the
Court allowed and indeed encouraged commercial
entities such as Granite State to raise facial challenges
to entire regulatory schemes that restrict protected
speech on signs. The Eleventh Circuit’s decision to
discard overbreadth standing was predicated on its
failure to defer to this Court’s clear precedent.
The Metromedia Court invalidated San Diego’s
sign ordinance based in large part on 12 exemptions to
the city’s ban on off-premise signs where the
exemptions had no possible application to the outdoor
advertising company. Jd. at 514-15 (holding that “the
city may not choose the appropriate subjects for public
discourse”). Those signs exempted from prohibition by
the San Diego regulations included
government signs; signs located at public
bus stops; . . . commemorative historical
plaques; religious symbols; signs within
shopping malls; for sale and for lease
signs; signs on public and commercial
vehicles; signs depicting time,
temperature, and news; approved
temporary, off-premises, subdivision
ete Ue ON et eee ene
15
directional signs; and “[(tjemporary
political campaign signs.”
Id. at 494-95. The Metromedia Court expressly
rejected the dissenting Chief Justice’s finding that
these exceptions were de minimis. Id. at 518-19.’
Therefore, the Court undeniably established that
plaintiffs such as Granite State have facial standing to
challenge all provisions of sign regulations under the
overbreadth doctrine, even those provisions that have
no actual impact on the plaintiff. /d. at 504, n. 11.
The Clearwater decision not only eliminates
years of careful development of the overbreadth
doctrine, it also eliminates the most important single
mechanism through which parties may obtain judicial
review of state actions that limit or eliminate common
avenues of speech and important subject areas of
speech. The Eleventh Circuit’s decision reversed the
district court’s findings and took the unprecedented
step of reinstating several unconstitutional provisions
to the detriment of the citizens of the City. Such
provisions are unlikely to be challenged again because
individuals and nonprofits typically do not have the
resources to litigate. Through the granting of this
petition, the Court can review, refine, and correct
misreadings and misapplications of this fundamental
technique of preservation of basic constitutional rights.
* As cursory review of the Sign Ordinance discloses exemptions
similar to those resulting in the invalidation of San Diego’s
ordinance. (87a-91a) (referring to Sign Ordinance, § 3-1805).
16
II. THE CLEARWATER DECISION CREATES
CONFUSION AMONG THE CIRCUITS ON
THIS IMPORTANT QUESTION OF
FEDERAL LAW.
The Eleventh Circuit’s decision conflicts with
other circuits that have considered this precise issue in
the context of restrictions on First Amendment
activity. This important question of 2deral law
requires uniformity, for to permit otherwise would
countenance a situation where speakers in some parts
of the country would be denied standing to protect the
exact same speech rights they are guaranteed in other
parts of the country.
The panel decision conflicts with numerous
decisions from other circuit courts of appeal. The other
circuits have repeatedly acknowledged the standing of
an aggrieved speech applicant to challenge all
unconstitutional aspects of a speech regulation. E 7.,
Ackerley Communications of Mass., Inc. v. City of
Cambridge, 88 F.3d 33 (1* Cir. 1996); Lamar Adver. of
Penn, LLC v. Town of Orchard Park, 356 F.3d 365, 374-
75 (24 Cir. 2004); National Adver. Co..v. Town of
Babylon, 900 F.2d 551, 553, 555 (2° Cir. 1990), cert.
denied, 492 U.S. 852 (1990); Peachlum v. City of York,
333 F.3d 429, 430 (8 Cir. 2003); Rappa v. New Castle
County, 18 F.3d 1043 (3% Cir. 1994); Giovani
Carandola, Ltd. v. Bason, 303 F.3d 507, 512-51 (4 Cir.
2002); Deja Vu of Nashville, Inc. v. Metropolitan Gov't
of Nashville and Davidson County, 274 F.3d 377, 385
(6 Cir. 2001), cert. denied, 535 U.S. 1073 (2002);
Dambrot v. Central Mich. Univ., 55 F.3d 1177, 1182 (6"
Cir. 1995); Arizona Right to Life Political Action
Comm. v. Bayless, 320 F.3d 1002, 1006-07 (9 Cir. 2003)
eddy Dab Ding Dee cat tie hte Pb ey
ee ae
, Salen ial gills Ib ela AS Bsc nd ioe
17
(granting standing and _ stating “{cJonstitutional
challenges based on the First Amendment” may be
initiated without “requiring litigants to speak first and
take their chances with the consequences”); Desert |
Outdoor Adver., Inc. v. City of Moreno Valley, 103 F.3d
814, 818 (9 Cir. 1996). Many of these cases have
involved commercial sign companies such as Granite
State, and refer specifically to the Court’s holding in
Metromedia.
The result of the conflict between the Eleventh
Circuit and the other circuits’ rulings is clear: parties
asserting First Amendment challenges in the Eleventh
Circuit are now denied the ability to challenge entire
regulatory schemes on overbreadth grounds, while such
challenges are permitted under the overbreadth
doctrine in other circuits. A party’s ability to challenge
the entirety of a regulatory scheme as being overbroad
should not turn on the location in which the challenge is
raised. The Court should grant Granite State’s petition
to resolve this glaring conflict between the Eleventh
Circuit decision and other circuit courts.
Ill. THE RISK THAT PROTECTED SPEECH
MAY BE CHILLED SUFFICES TO CONFER
OVERBREADTH STANDING ON A PARTY
TO CHALLENGE AN ENTIRE
REGULATORY SCHEME.
As the Court has repeatedly held, the
overbreadth doctrine allows litigants to facially
challenge a statute not because their own
rights of free expression are violated, but
because of a judicial prediction or
assumption that the statute’s very
A A SAP
18
existence may cause others not before the
court to refrain from constitutionally
protected speech or expression.
Broadrick, 413 U.S. at 612 (emphasis added); Free
Speech Coalition, 535 U.S. at 245 (reemphasizing that
an entire act is facially invalid if it prohibits a
substantial amount of protected speech and reiterating
that even “minor punishments may chill protected
speech”); American Booksellers, 484 U.S. at 392-93
(emphasizing that plaintiffs had standing to challenge
entire regulatory scheme); Members of City Council v.
Taxpayers for Vincent, 466 U.S. 789, 801 (1984) (a
statute is unconstitutional on its face on overbreadth
grounds if there is “a realistic danger that the statute
itself will significantly compromise recognized First
Amendment protections of pariies not before the
court”) (emphasis added); Metromedia, 453 U.S. at 504,
n. 11; Schad, 452 U.S. at 66 (allowing overbreadth
challenge to municipal zoning ordinance). In light of
the Court’s well-established precedent, the Eleventh
Circuit should have declined the City’s invitation to
impermissibly limit Granite State’s overbreadth
challenge to the specific provision under which it
suffered an actual injury. The appellate Clearwater
decision ignored the district court’s “judicial prediction”
that other provisions of the Sign Ordinance
impermissibly prohibit protected expression of third
parties.
19
IV. OVERBREADTH STANDING TO FACIALLY
CHALLENGE UNCONSTITUTIONAL
RESTRICTIONS ON PROTECTED SPEECH
DOES NOT DEPEND ON A SHOWING OF
ACTUAL INJURY.
The Eleventh Circuit erroneously required
Granite State to establish actual injury under each
challenged provision in order to obtain overbreadth
standing to challenge the entirety of the Sign
Ordinance. (5a-7a). The Clearwater decision conflicts
with this Court’s holdings and those of the other circuit
courts.
Pretermitting whether Granite State suffered
actual injury under the City’s Sign Ordinance, the
Court has established that there is no requirement that
a plaintiff demonstrate an actual injury to facially
challenge restrictions on First Amendment grounds.
Burson v. Freeman, 504 U.S. 191, 210, n. 13 (1992); Fox,
492 U.S. at 484 (reemphasizing that the purpose of the
overbreadth doctrine is “to enable persons who are
themselves unharmed . . . to challenge that statute” on
behalf of others) (quoting Broadrick, 413 U.S. at 610).
As noted above, the Court dispenses with “the
application of [strict standing] rules [that] would itself
have an inhibitory effect on freedom of speech... .”
Raines, 362 U.S. at 22-3 (citing Smith, 361 U.S. at 151;
Thornhill, 310 U.S. at 97-8); also American
Booksellers, 484 U.S. at 392-93 (granting facial standing
after “conclud[ing] that plaintiffs have alleged an actual
and well-founded fear that the law will be enforced
against them”); Reno v. ACLU, 521 U.S. at 861-62, nn.
27-28 (granting plaintiffs overbreadth standing to
challenge Communications Decency Act before any
20
enforcement had occurred). The Court’s holdings are
clear: parties challenging regulatory schemes that may
potentially chill protected speech have facial standing
to do so without the traditional requirement of
demonstrating “actual harm.”
Indeed, it is the potential to chill the exercise of
First Amendment rights that confers overbreadth
standing on Granite State even if it had not applied for
permits prior to bringing its First Amendment
challenge. Lakewood, 486 U.S. at 755-56 (emphasizing
“the mere existence of the licensor’s unfettered
discretion, coupled with the power of prior restraint,
intimidates parties into censoring their own speech,
even if the discretion and power are never actually
abused”); Virginia Society for Human Life, Inc. v.
Federal Election Comm’n, 263 F.3d 379, 388 (4* Cir.
2001) (holding “that when a statute on its face restricts
a party from engaging in expressive activity, there is a
presumption of a credible threat of prosecution. ‘This
presumption is particularly appropriate when the
presence of a statute tends to chill the exercise of First
Amendment rights”) (quoting North Carolina Right to
Life, Inc. v. Bartlett, 168 F.3d 705, 710 (4 Cir. 1999),
cert. denied, 528 U.S. 1153 (2000)).
This Court and other circuit courts recognize
that where, as here, a party challenges a prior restraint
on protected speech as vesting impermissible discretion
in government officials by failing to provide adequate
procedural safeguards or failing to provide narrow,
objective criteria to guide officials’ determinations,
“courts must permit those subject to the laws to bring
an immediate facial challenge.” 11126 Baltimore Blud.,
Inc. v. Prince George's County, 58 F.3d 988, 994 (4 Cir.
gw
21
1995) (en bane) (citing Lakewood, 486 U.S. at 759). A
party may facially challenge licensing schemes as
vesting impermissible discretion in government officials
“whether or not his conduct could be proscribed by a
properly drawn statute, and whether or not he applied
for a license.” Lakewood, 486 U.S. at 756; Z.J. Gifts D-
4, L.L.C. v. City of Littleton, 311 F.3d 1220, 1226-27 (10
Cir. 2002), cert. granted in part, 124 S.Ct. 383 (citing
Freedman v. Maryland, 380 U.S. 51, 56 (1965);
FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 223
(1990)). Indeed, if one’s conduct could not be proscribed
by an offensive licensing scheme, the plaintiff could not
suffer an actual injury under the challenged
regulations. Lakewood, 486 U.S. at 755-56.
Contrary to the Clearwater analysis, where
facial challenges to licensing schemes are raised, this
Court has established that the appropriate inquiry is
not whether censorship actually results from a
regulation’s enforcement. Rather, it is the risk of the
“arbitrary suppression” or indefinite delay of protected
speech that provides plaintiffs with overbreadth
standing to facially challenge such regulatory schemes.
FW/PBS, 493 U.S. at 225-27; Thomas v. Chicago Park
Dist., 5384 U.S. 316, 323 (2002); Riley v. National Fed’
of the Blind, 487 U.S. 781, 802 (1988) (holding “delay
compels the speaker’s silence”).
This Court and other circuit courts hold that
“the success of a facial challenge on the grounds that an
ordinance delegates overly broad discretion to the
decisionmaker rests not on whether the administrator
has exercised his discretion in a content-based manner,
but whether there is anything in the ordinance
preventing him from doing so.” Forsyth County v.
22
Nationalist Movement, 505 U.S. 123, 133, n. 10 (1992);
Southworth v. Board of Regents, 307 F.3d 566, 577-78
(7 Cir. 2002); Lewis v. Wilson, 253 F.3d 1077, 1080 (8t
Cir. 2001).* “(Courts] cannot depend on the individuals
responsible for enforcing the Ordinance to do so in a
manner that cures it of constitutional infirmities.”
Lakewood, 486 U.S. at 770. The Eleventh Circuit
should not have denied Granite State overbreadth
standing because the Sign Ordinance affords officials
Just such power and contains no provisions constraining
the exercise thereof.
Furthermore, this Court and other circuits,
including the Eleventh Circuit, hold that in facial
challenges, “the facts of the challenging party’s case are
irrelevant.” Miami Herald, Inc. v. City of Hallandale,
734 F.2d 666, 674, n. 4 (11 Cir. 1984) (citing Beckerman
v. City of Tupelo, 664 F.2d 502, 506-07 (5 Cir. 1981));
Forsyth County, 505 U.S. at 133, n. 10 (reaffirming that
“[flacial attacks on the discretion granted a
decisionmaker are not dependent on the facts” as
applied to a particular plaintiff); Lakewood, 486 U.S. at
770; Shuttlesworth v. City of Birmingham, 394 U.S. 147 ;
151 (1969); Griffin v. Secretary of Veterans Affairs, 288
F.3d 1809, 1318-19 (D.C. Cir. 2002); International
Society for Krishna Consciousness v. Eaves, 601 F.2d
809, 823 (5 Cir. 1979). The Clearwater decision
* The Eleventh Circuit reaffirmed in the Clearwater decision that
it has determined that this Court’s decision in Thomas v. Chicago
Park District, 584 U.S. 316, 323 (2002), has done away with the
need for procedural safeguards in arguably “content-neutral”
speech permitting schemes. (9a-10a). Also Granite State Outdoor
Adver., Inc. v. City of St. Petersburg, 348 F.3d 1278 (11 Cir.
2003), petition for cert. filed, 72 U.S.L.W. 3644 (U.S. Mar 29, 2004)
(No. 03-1386).
23
effectively denies standing to facially challenge
unconstitutional statutes and ordinances.
CONCLUSION
This petition for writ of certiorari should be
granted. The Eleventh Circuit’s Clearwater decision
makes a mockery of overbreadth standing. The
decision clearly conflicts with the holdings of this Court,
those of other circuits around the country, and with
common sense. Moreover, the decision mandates that
the district court re-impose several indisputably
unconstitutional sign restrictions, an unprecedented
occurrence in federal jurisprudence. Because the right
of free speech above all others requires uniformity and
diligent protection, this matter should be taken up by
the Court.
DATED this 18th day of May, 2004.
Respectfully submitted,
E. Adam Webb
Counsel of Record
Georgia State Bar No. 743910
Webb & Porter, L.L.C.
2625 Cumberland Parkway, S.E.
Suite 220
Atlanta, Georgia 30339
(770) 444-0773
Attorney for Petitioner Granite
State Outdoor Advertising, Inc.
as a nates
eh
PRCT
PPR?
TTI IP
a PC ce) La ae ae
la
(Any footnotes trail end of each document)
No. 02-14434
UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
GRANITE STATE OUTDOOR
ADVERTISING, INC.,
Plaintiff-Appellant,
versus
CITY OF CLEARWATER, FLORIDA,
BRIAN AUNGST, SR., as an individual and in his
capacity as Mayor of the city, WILLIAM HORNE,
as an individual and in his capacity as city manager,
Defendants-Appellees.
November 28, 2003, Decided
November 28, 2003, Filed
COUNSEL: For Granite State Outdoor Advertising,
Inc., Appellant: Webb, Edward Adam, Dow, Lohnes &
Albertson, ATLANTA, GA.
For City of Clearwater, Florida, Appellee: Brinton,
William David, Allen, Brinton & Simmons, P.A.,
Jacksonville, FL.
For Aungst, Brian Sr., Horne, William, Appellees:
Russell, Cristine M., Rogers, Towers, Bailey, Jones &
Gay, Jacksonville, FL.
2a
JUDGES: Before ANDERSON and BIRCH, Circuit
Judges, and PROPST *, District Judge. ANDERSON.
Circuit Judge, concurring.
OPINION BY: BIRCH
OPINION: BIRCH, Circuit Judge:
In this appeal, we must determine whether the district
court properly denied plaintiff-appellant’s, Granite
State Outdoor Advertising, Inc. (“Granite State”),
request for injunctive relief against defendant-appellee,
the City of Clearwater, Florida (“the City” or
“Clearwater”), after several permit applications to
construct billboards in the City were denied under
Article 3, Division 18 of the City’s Community
Development Code (“the Code”). The district court
ruled that Granite State had standing to challenge the
entirety of Article 3, Division 18, but not any part of
Article 4, the part of the Code that governs the permit
denial appeals process. The district court denied
injunctive relief based on its ruling that, after
unconstitutional provisions of Division 18 were severed
from the remainder of the ordinance, the remaining
provisions were constitutional. Upon consideration, we
AFFIRM in part, REVERSE in part, and REMAND.
I. BACKGROUND nl
Granite State is a Georgia corporation in the business of
buying or leasing land upon which to construct signs
and billboards to be used for both commercial and non-
commercial purposes. Granite State has never erected
or operated a billboard, nor has it held a permit in its
own name to erect a billboard. Granite State receives
3a
its profits from the sale of billboard permits it obtains
from various cities and municipalities, some of which
have been obtained through litigation similar to the
case before us.
Clearwater is a political subdivision of the state of
Florida and describes itself as a “resort community on
the west coast of the state with more than five miles of
beaches on the Gulf of Mexico” and with a tourism-
based economy. Clearwater Cmty. Dev. Code § 3-1801
(1999). Clearwater, like many other cities, has codified
various sign regulations to create a comprehensive
scheme for regulating, inter alia, the permitting,
placement, number, size, height, design, operation, and
maintenance of signs within the City’s boundaries. Id.
§§ 3-1801 - 1807 (2003). The many purposes of these
sign regulations include traffic safety and aesthetics of
the community. Id. § 3-1802 (1999).
Granite State entered into lease agreements for a total
of eight parcels of real property located in commercial
or industrial areas of Clearwater. Granite State’s goal
was to construct and operate one freestanding billboard
sign on each parcel of property. The City denied each of
Granite State’s permit applications because Granite
State applied to construct billboards more than four
times the allowable height and ten times the allowable
area under Clearwater regulations. Rather than appeal
the denial of its permits, Granite State initiated the
current. litigation in the Middle District of Florida
challenging the constitutionality of Article 3, Division
18 and Article 4 of Clearwater’s Community
Development Code on First Amendment grounds and
requesting injunctive relief. n2
4a
Article 3, Division 18 regulates both commercial and
non-commercial signs and dictates when permits are
required before certain signs may be erected. In
particular, § 3-1806 regulates “permitted signs
requiring development review.” Part B.1. of this section
deals with non-residential, freestanding signs, and it
was under this part of § 3-1805 that Granite State’s
permits were denied. Specifically, subparts (c) and (e) of
§ 3-1806.B.1. dictate the allowable area and height,
respectively, of a freestanding sign. Article 4 sets forth
the process for obtaining various levels of permit
approval and also details the appeals process to contest
denial of a permit.
The district court granted Granite State standing to
challenge the entirety of Article 3, Division 18 on First
Amendment grounds, both as applied and under the
overbreadth doctrine, and denied it standing to
challenge any part of Article 4 on either grovad.
Because we find the district court misapplied whe
overbreadth doctrine, we reverse the district court’s
grant of standing to Granite State to challenge
provisions of the City’s sign ordinance that did not give
rise to an injury in fact (i.e., provisions other than § 3-
1806.B.1.), and we remand this case for further
proceedings consistent with this opinion. We affirm the
district court’s denials of (1) standing to challenge any
part of Article 4, (2) injunctive relief, and (3) attorney’s
fees.
II. DISCUSSION
A. Standing
Article III, § 2 of the United States Constitution
CRITE act HS AES oe OES
Stine iranian Kida SaaS
5a
requires that there be a “case” or “controversy” before
a federal court may decide a case. U.S. CONST. art. III,
§ 2. See, e.g., Lujan v. Defenders of Wildlife, 504 U.S.
555, 559-60, 112 S. Ct. 2130, 2136, 119 L. Ed. 2d 351
(1992). The constitutional requirements for a federal
court to adjudicate a case are accompanied by
prudential requirements. See, e.g., Bennett v. Spear,
520 U.S. 154, 162, 117 S. Ct. 1154, 1161, 187 L. Ed. 2d
281 (1997); Lujan, 504 U.S. at 560, 112 S. Ct. at 2136.
Together, these constitutional and_ prudential
requirements form the doctrine of standing. See, e.g.,
Bennett, 520 U.S. at 162, 117 S. Ct. at 1161; Lujan, 504
USS. at 560, 112 S. Ct. at 2136.
The Supreme Court has identified three constitutional
requirements for standing, all of which must be
satisfied: (1) an injury in fact, meaning an injury that is
concrete and particularized, and actual or imminent, (2)
a causal connection between the injury and the causal
conduct, and (3) a likelihood that the injury will be
redressed by a favorable decision. n3 See, e.g., Bennett,
520 US. at 167, 117 S. Ct. at 1163. The Court also has
identified three prudential standing principles. See,
e.g., Allen v. Wright, 468 U.S. 737, 751, 104 S. Ct. 3315,
3324, 82 L. Ed. 2d 556 (1984). Relevant here is the
principle that a party generally may assert only his or
her own rights and cannot raise the claims of third
parties not before the court. See, e.g., id.
Certain exceptions to the prudential standing
requirements have developed in Supreme Court
jurisprudence. Significant to this case is the
“overbreadth doctrine,” an exception that applies in
First Amerdment. cases involving non-commercial
speech and that vermits third-party standing when a
Nee REE ee
6a
statute is constitutionally applied to the litigant but
might be unconstitutionally applied to third parties not
before the court. See, e.g., Village of Schaumburg v.
Citizens for a Better Env’t, 444 U.S. 620, 634, 100 S. Ct.
826, 834-35, 63 L. Ed. 2d 73 (1980). The overbreadth
doctrine, however, is not an exception to the
constitutionai standing requirements. Bischoff v.
Osceola County, Fla., 222 F.3d &74, 884 (11th Cir. 2000).
A plaintiff seeking to make an overbreadth challenge
must first show that he has suffered an injury in fact, as
required under Article III. See, e.g., Virginia v. Am.
Booksellers Ass’n Inc., 484 U.S. 383, 392-93, 108 S. Ct.
636, 642-43, 98 L. Ed. 2d 782 (1988); Village of
Schaumburg, 444 U.S. at 634, 100 S. Ct. at 834; Bischoff,
222 F.3d at 884.
An “injury in fact” requires the plaintiff to “show that
he personally has suffered some actual or threatened
injury.” Valley Forge Christian College v. Americans
United for Separation of Church and State, 454 US.
464, 472, 102 S. Ct. 752, 758, 70 L. Ed. 2d 700 (1982)
(emphasis added) (internal quotations omitted). While
this requirement is hard to define precisely, we know
that the plaintiff must at least claim to personally
suffer some harm. See, e.g., Lujan, 504 U.S. at 562-63,
112 S. Ct. at 2187-38; United States v. Students
Challenging Regulatory Agency Procedures (SCRAP),
412 U.S. 669, 686-87, 93 S. Ct. 2405, 2415, 37 L. Ed. 2d
254 (1973).1. Division 18, § 3-1806.B.1. of the Clearwater
Community Development Code
In this case, the only harm that Granite State has
personally suffered is under § 3-1806.B.1. of the
Clearwater Community Development Code. It was
under this provision that Granite State’s billboard
Ta
permits were denied. Granite State has suffered no
injury regarding any other provision in Article 3,
Division 18. Thus, Granite State has standing to
challenge the censti‘utionality of only § 3-1806.B.1. as
applied to it and, under the overbreadth doctrine, as
applied to non-commercial speech.
This provision was constitutionally applied to Granite
State: it sought to construct a billboard sign much
larger than any sign allowed under the Clearwater
regulations. Moreover, because § 3-1806.B.1. is content-
neutral and gives no discretion to the permitting
authority, this provision is not overbroad. n4 See, e.g.,
Staub v. Baxley, 355 U.S. 313, 322, 78 S. Ct. 277, 282, 2
L. Ed. 2d 302 (1958); Horton v. City of St. Augustine,
272 F.3d 1318, 1331-32 (41th Cir. 2001). Thus, Granite
State’s constitutional challenge to § 3-1806.B.1. must
fail. This issue is remanded to the district court for
further proceedings consistent with this opinion.
2. Article 4 of the Clearwater Community Development
Code
Granite State does not have standing to challenge
Article 4 of the Code because it has suffered no injury
with regard to the City’s permitting and appeals
process. n5 Granite State argues that it did not avail
itself of the allegedly unconstitutional appeals process
because the ordinance does not contain sufficient
procedural safeguards. The specific constitutional
defect, according to Granite State, is the fact that City
officials have an unlimited amount of time to decide
whether to grant or deny a permit application. Such an
argument, by itself, does not create Article III
standing. Granite State has neither alleged nor shown
8a
how the City’s permitting and appeals procedure has
injured Granite State. To the contrary, the record
shows that Granite State’s permits were denied within
a reasonable time: the same day they were submitted.
See, e.g., United States v. Hays, 515 U.S. 737, 745, 115
S. Ct. 2431, 2436, 182 L. Ed. 2d 635 (1995) (holding that
only those voters residing in an_ allegedly
unconstitutionally drawn voting district have standing
to challenge the unconstitutionality of the voting
district); Sierra Club v. Morton, 405 U.S. 727, 739, 92 S.
Ct. 1361, 1368, 31 L. Ed. 2d 636 (1972) (affirming “the
requirement that a party seeking review must allege
facts showing that he is himself adversely affected”).
We note that this case is distinguishable from a line of
Supreme Court cases involving (but not beginning
with) City of Lakewood v. Plain Dealer Publ’g Co., 486
U.S. 756, 755-56, 108 S. Ct. 2138, 2140, 100 L. Ed. 2d 771
(1988), and precedent from our circuit relying on the
same, allowing litigants to facially challenge a licensing
scheme vesting the decision-maxer with unbridled
discretion. n6 See, e.g., FW/PBS, Inc. v. City of Dallas,
493 U.S. 215, 223-24, 110 S. Ct. 596, 603-04, 107 L. Ed.
2d 603 (1990); United States v. Frandsen, 212 F.3d 1231,
1235-36 (11th Cir. 2000); Gold Coast Publ’ns, Inc. v.
Corrigan, 42 F.3d 1336, 1343 (11th Cir. 1994); Dimmitt
v. City of Clearwater, 985 F.2d 1565, 1570 (11th Cir.
1993); Abramson v. Gonzalez, 949 F.2d 1567, 1573 (11th
Cir. 1992); Sentinel Communications Co. v. Watts, 936
F.2d 1189, 1197-98 (11th Cir. 1991).
In Lakewood, the city mayor was given unguided
discretion to decide which publishers could place
newsracks on public property and where they could be
placed. 486 U.S. at 753-54, 108 S. Ct. at 2142. The Court
9a
held that such unbridled discretion in the permitting
official “constituted a prior restraint and may result in
censorship.” Id. at 757, 108 S. Ct. at 2144. The Court
then granted the plaintiff standing to facially challenge
this defect in the ordinance. Id. at 755-56, 108 S. Ct. at
2143.
Similar to the challenged permitting scheme in this
case, the ordinance in Lakewood also did not contain
time limits within which the Mayor had to decide
whether to grant or to deny a permit. Id. at 771, 108 S.
Ct. at 2151-52. The majority noted, however, that “even
if judicial review were relatively speedy, such review
cannot substitute for concrete standards to guide the
decision-maker’s discretion.” Id., 108 S. Ct. at 2151.
Thus, time limits are required when their lack could
result in censorship of certain viewpoints or ideas, see,
e.g., Freedman v. Maryland, 380 U.S. 51, 58-59, 85 S. Ct.
734, 739, 18 L. Ed. 2d 649 (1965), but are not
categorically required when the permitting scheme is
content-neutral. Thomas v. Chicago Park Dist., 534 U.S.
316, 322-24, 122 S. Ct. 775, 780-81, 151 L. Ed. 2d 783
(2002). See also Granite State Outdoor Adver., Inc. v.
City of St. Petersburg, 348 F.3d 1278 (2003) (noting
that, “In particular, . . . the Court never stated time
limits were per se required for a [content-neutra!]
permitting scheme to be valid. Rather, the Court
simply held all that was required were ‘adequate
standards to guide the official’s discretion and render it
subject to judicial review.”’) (citations omitted)).
The Clearwater Community Development Code gives
no similar discretion to the permitting authorities as
existed in cases such as Lakewood. City officials can
only process a permit application and decide to grant or
deny the permit based on specific, objective criteria
10a
(e.g., the height, size, or surface area of a proposed
sign). Moreover, we note that the litigants in
Lakewood, who were allowed to facially challenge an
ordinance on the ground that it gave permitting
authorities unbridled discretion, were injured under the
very provisions they challenged. Lakewood, 486 U.S. at
754, 108 S. Ct. at 2142. As we have explained, this is not
the circumstance for Granite State, which suffered no
injury in fact under Article 4. n7
The judgment of the district court denying Granite
State standing to challenge Article 4 both as applied
and facially under the overbreadth doctrine is,
therefore, affirmed.
B. Mootness
Like the requirement of standing, mootness is a
justiciability doctrine that must be satisfied before we
may decide a case. See, e.g., United States Parole
Comm’n v. Geraghty, 445 U.S. 388, 396-97, 100 S. Ct.
1202, 1208-09, 63 L. Ed. 2d 479 (1980). We lack
jurisdiction because of mootness “when the issues
presented are no longer ‘live’ or the parties lack a
iegally cognizable interest in the outcome.” Powell v.
McCormack, 395 U.S. 486, 496, 89 S. Ct. 1944, 1951, 23
L. Ed. 2d 491 (1969). In this case, the City argues that
Granite State’s claims are now moot _ because
Clearwater has revised the Code in accordance with the
district court’s decision. Because Granite State has
requested damages, however, the changes made to the
ordinance do not make this case moot. See, e.g.,
Firefighters Local Union No. 1784 v. Stotts, 467 U.S.
561, 571, 104 S. Ct. 2576, 2584, 81 L. Ed. 2d 483 (1984);
Havens Realty Corp. v. Coleman, 455 U.S. 363, 371, 102
lla
S. Ct. 1114, 1120, 71 L. Ed. 2d 214 (1982); see also
Mesquite v. Aladdin’s Castle, Inc., 455 U.S. 283, 289,
102 S. Ct. 1070, 1074, 71 L. Ed. 2d 152 (1982) (“repeal of
the objectionable language would not _ preclude
[Clearwater] from reenacting precisely the same
provision if the District Court’s judgment were
vacated”). Thus, we must rule on the constitutionality
of the provision under which Granite State may be
entitled to damages, § 3-1806.B.1. As we have
explained, this section was not unconstitutionally
applied to Granite State. Accordingly, Granite State is
not entitled to damages resulting from the denial of its
permits under this section. The district court’s denial of
damages is affirmed.
C. Attorney’s Fees
Granite State argues that it should be entitled to an
award of attorney’s fees pursuant to 42 U.S.C. §
1988(b), which permits the court to award attorney’s
fees to the “prevailing party” for actions brought under
various civil rights provisions, including 42 U.S.C. §
1983. 42 U.S.C. § 1988(b). Granite State argues that,
while it did not succeed on all of its claims in the district
court, it nevertheless should be entitled to attorney’s
fees because it has achieved “excellent results” for third
parties who may have sought to post a sign under the
provisions of the ordinance stricken by the district
court. Appellant’s Br. at 40. Under § 1988, however, the
plaintiff is considered a “prevailing party” if he obtains
“at least some relief on the merits of his claim”...
“{that] materially alters the legal relationship between
the parties.” Farrar v. Hobby, 506 U.S. 103, 111-12, 118
S. Ct. 566, 573, 121 L. Ed. 2d 494 (1992) (citations
omitted); Hewitt v. Helms, 482 U.S. 755, 760, 107 S. Ct.
12a
2672, 2675, 96 L. Ed. 2d 654 (1987). See also Falanga v.
State Bar, 150 F.3d 1333, 1347 n.34 (11th Cir. 1998).
Furthermore, “(a] favorable judicial statement of law in
the course of litigation that results in judgment against
the plaintiff does not suffice to render him a ‘prevailing
- party” under § 1988. Hewitt, 482 U.S. at 763, 107 S. Ct.
at 2677.
In this case, Granite State is not the “prevailing party”
and the relationship between the parties is unaltered.
n8 We have determined that § 1306.B.1. was
constitutionally applied to Granite State and is facially
constitutional. We also determined that the district
court erred in allowing Granite State standing to
challenge any other provisions in Article 3, Division 18.
Moreover, we determined that the district court
correctly ruled that Granite State did not have standing
to challenge Article 4. Thus, Granite State has not
prevailed on any of its claims regarding the Clearwater
Community Development Code. The district court’s
denial of an award of attorney’s fees is affirmed.
IlI. CONCLUSION
The district court erred in its conclusion that Granite
State had standing to challenge the entirety of Article
3, Division 18 of the Clearwater Community
Development Code. Accordingly, this part of the
district court’s holding is reversed and remanded for
proceedings consistent with this opinion. The district
court correctly denied Granite State both standing to
challenge Article 4 and injunctive relief because the
provision under which Granite State’s permit requests
were denied is not unconstitutional. Moreover, the
district court correctly denied Granite State’s request
13a
for attorney’s fees. Accordingly, the judgment of the
district court is AFFIRMED in part, REVERSED in
part, and REMANDED for further proceedings
consistent with this opinion.
CONCUR BY: ANDERSON
CONCUR: ANDERSON, Circuit Judge, concurring.
I concur in the result.
Footnotes
* Honorable Robert B. Propst, United States District
Judge for the Northern District of Alabama, sitting by
designation.
nl The facts in this case that we relate are undisputed.
n2 Initially, Granite State also requested injunctive
relief from Clearwater Mayor, Brian Aungst, Sr., and
its City Manager, William Horne. The district court
dismissed Granite State’s claims against these
defendants both in their individual and _ official
capacities. This dismissal was not challenged on appeal;
therefore, the only remaining defendant before us is the
City of Clearwater. Additionally, Granite State has not
appealed the district court’s rulings regarding its claims
that the Clearwater ordinance violates the Fourteenth
Amendment guarantee of equal protection and the
Fifth Amendment’s Takings Clause. Accordingly, these
issues are not before us: “Issues not clearly raised in
the briefs are considered abandoned.” Hardwick v.
Crosby, 320 F.3d 1127, 1158 n.140 (11th Cir. 2003)
(citations omitted).
14a
n3 Because these requirements are jurisdictional, we
must consider them as a threshold matter, regardless of
whether the parties or the court below has done so.
Focus on the Family v. Pinellas Suncoast Transit Auth.,
344 F.3d 1263 (11th Cir. 2003). Once we determine that
the standing requirements have been met, we review
the district court’s denial of injunctive relief under the
abuse of discretion standard, but “we review de novo
determinations of law made by the district court en
route.” Kidder, Peabody & Co., Inc. v. Brandt, 131 F.3d
1001, 1003 (11th Cir. 1997).
n4 Granite State has alleged that this provision is a
prior restraint on speech because a permit is required
before a billboard may be erected. This section is not a
prior restraint, however, for the same reasons why an
overbreadth challenge will fail: it is content-neutral and
gives no discretion to the permitting authority. See,
e.g., Staub v. Baxley, 355 U.S. 313, 322, 78 S. Ct. 277,
282, 2 L. Ed. 2d 302 (1958); Horton v. City of St.
Augustine, 272 F.3d 1318, 1332 (11th Cir. 2001).
n5 We note that while 42 U.S.C. § 1983 forms the
statutory jurisdictional basis for Granite State’s claim,
§ 1983 is not a substitute for the constitutional standing
requirements. Section 1983 allows a plaintiff to bring a
claim into court without exhausting _ state
administrative appeals. See, e.g., Patsy v. Bd. of
Regents of State of Fla., 457 U.S. 496, 518, 102 S. Ct.
2557, 2559-60, 73 L. Ed. 2d 172 (1982). It does not,
however, permit a plaintiff to challenge an appeals
process that the plaintiff chose to forego without
showing any actual or potential harm caused by the
challenged appeals process.
15a
n6 To the extent any of our prior decisions allowed
facial standing (1) without first determining whether
the litigant was entitled to as-applied standing or (2)
without mentioning or discussing standing at all, such
cases are inapposite to the present case.
n7 Moreover, as noted in Granite State Outdoor Adver.,
Inc. v. City of St. Petersburg, it is possible that the
“City officials could potentially delay the processing of
certain permit applications and thereby arbitrarily
suppress disfavored speech.” F.3d ,_ , 2003 U.S.
App. LEXIS 22039 (11t.: Cir. 2003). Because we find
Granite State lacks standing to challenge Article 4, we
find that such “abuse must be dealt with if and when a
pattern of unlawful favoritism appears.” Id. at, 2003
U.S. App. LEXIS 22039 (quoting Thomas, 534 U.S. at
325, 122 S. Ct. at 781).
n8 As in Granite State Outdoor Adver., Inc. v. City of
St. Petersburg, it is true that several provisions in the
Clearwater ordinance were voluntarily altered by the
City as a result of this litigation. These changes,
however, “have no bearing on Granite [State], and thus
their alteration does not serve to confer prevailing
party status upon Granite [State].”. F.3d at, ns,
2003 U.S. App. LEXIS 22039.
16a
Case No. 8:01-ev-1663-T-30MSS
UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION GRANITE STATE
OUTDOOR DVERTISING, INC.,
Plaintiff,
V.
CITY OF CLEARWATER, FLORIDA, et al.,
Defendants.
July 23, 2002, Decided
COUNSEL: For GRANITE STATE OUTDOOR
ADVERTISING, INC., plaintiff: Kent G. Whittemore,
Whittemore, Denson P.A., St. Petersburg, FL.
For GRANITE STATE OUTDOOR ADVERTISING,
INC., plaintiff: Sean R. Smith, E. Adam Webb, Dow,
Lohnes & Albertson, PLLC, Atlanta, GA.
For CITY OF CLEARWATER, FLORIDA, BRIAN
AUNGST, WILLIAM HORNE, defendants: Leslie
Kathleen Dougall-Sides, City of Clearwater,
Clearwater, FL.
For CITY OF CLEARWATER, FLORIDA, BRIAN
AUNGST, WILLIAM HORNE, defendants: William
David Brinton, Cristine M. Russell, Rogers, Towers,
Bailey, Jones & Gay, Jacksonville, FL USA.
17a
For SMD L.L.P., JERRY DRIGGERS, movants: Sean
R. Smith, Dow, Lohnes & Albertson, PLLC, Atlanta,
GA.
JUDGES: JAMES S. MOODY, JR., UNITED STATES
DISTRICT JUDGE.
OPINION BY: JAMES S. MOODY, JR.
OPINION:
ORDER
This cause came before the Court for consideration
upon the following Motions:
1. Individual Defendants’ Motion to Dismiss the
Complaint with Prejudice (Dkt. # 10) and Motion to
Dismiss the Amended Complaint (Dkt. 62), nl
Plaintiff's response in opposition thereto (Dkt. # 13) and
the individual Defendants’ reply thereto (Dkt. 22);
2. Plaintiff's Motion for Preliminary Injunction (Dkt. #
16), supporting memorandum (Dkt. # 17) and
Defendants’ memorandum in opposition thereto (Dkt. #
30);
3. Plaintiff's Motion for Partial Summary Judgment
(Dkt. # 18), supporting memorandum (Dkt. # 19), and
Defendants’ memorandum in opposition thereto (Dkt. #
42), and
4. Defendants’ Motion for Final Summary Judgment
(Dkt. # 41), supporting memorandum (Dkt. # 42) and
Plaintiff's response in opposition thereto (Dkt. #51).
18a
Both parties have also filed supporting affidavits and
exhibits to their Motions, including certified copies of
the ordinance at issue. The Court heard the arguments
of counsel on March 15, 2002. Additionally, the Court
requested (Dkt. 71), and considered, the parties
additional briefs on standing. (Dkts. 74, 75).
I. FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff has filed a separate Statement of Facts in
support of its Motions for Partial Summary Judgment
and Preliminary Injunction. (See Dkt. # 20). Defendants
have incorporated their recitation of the facts as part of
their memorandum in support of their Motion for
Summary Judgment. (See Dkt. # 42). The undisputed
facts are as follows.
Plaintiff, Granite State Outdoor Advertising, Inc.,
(“Granite State”) is a Georgia corporation in the
business of buying or leasing land upon which to
construct signs and billboards to be used for the
dissemination of both commercial and non-commercial
speech. (Amded. Compl., P 6). Defendants point out
that Granite State employs only two persons, the
president and vice-president, and operates out of the
Georgia residence of its president, who previously
worked for two outdoor advertising companies. Since
its incorporation in 1997, Granite State has “never
erected a billboard, never operated a billboard, has
never been licensed as an outdoor advertising company,
and has not yet held a permit in its own name to erect a
billboard.” (Charles Dep. at 39-41, 47, 68). To date,
Granite State has received profits from the sale of at
least twenty-two billboard permits to Eller Media
which were obtained from similar litigation brought
19a
against various cities and municipalities in the state of
Georgia. (Id. at 12, 69).
In the case at bar, Granite State entered into iease
agreements for five different parcels of real property
located in commercial or industrial areas in the city of
Clearwater, Florida (“Clearwater”), upon which to
construct and operate one freestanding billboard sign
on each parcel of property. Id., P 8. Plaintiff
subsequently obtained three other lease agreements
and filed an amended complaint to add its claims
regarding these three parcels. Id., P 8A.
Defendant Clearwater is a political subdivision of the
state of Florida and describes itself as a “resort
community on the west coast of the state with more
than five miles of beaches on the Gulf of Mexico” which
has an economic base that relies “heavily on tourism.”
(See § 3-1801). Clearwater has codified various sign
regulations to create a comprehensive scheme for
regulating, inter alia, the permitting, placement,
number, construction, size, height, design, operation,
and maintenance of the signs within the city’s
boundaries. (Amded. Compl., P 9). Clearwater has
regulated the height and size of signs for more than
twenty-five years and enacted various codes over the
years. (See Dkt. # 42, pp. 6-8).
The sign regulations at issue are contained within
Division 18 of Clearwater’s Community Development
Code (the “Code”). The entirety of the sign ordinance,
“Division 18” containing § § 3-1801 through 3-1807 (the
“Ordinance”), is attached as Appendix 1 to this Order
and is referred to herein by section number. Section 3-
1802 contains the specific purposes and intentions for
20a
which the sign regulations were promulgated.
Clearwater’s sign regulations are intended to:
A. Enable the identification of places of residence and
business.
B. Allow for the communication of information
necessary for the conduct of commerce.
C. Lessen hazardous situations, confusion and visual
clutter caused by proliferation, improper placement,
illumination, animation and excessive height, area and
bulk of signs which compete for the attention of
pedestrian and vehicular traffic.
D. Enhance the attractiveness and economic well-being
of the city as a place to live, vacation and conduct
business.
E. Protect the public from the dangers of unsafe signs.
F. Permit signs that are compatible with their
surroundings and aid orientation, and _ preclude
placement of signs in a manner that conceals or
obstructs adjacent land uses or signs.
G. Encourage signs that are appropriate to the zoning
district in which they are located and consistent with
the category of use to which they pertain.
H. Curtail the size and number of signs and sign
messages to the minimum reasonably necessary to
identify a residential or business location and the
nature of any such business.
2la
I. Establish a sign size in relationship to the scale of the
lot and building on which the sign is to be placed or to
which it pertains.
J. Preclude signs from conflicting with the principal
permitted use of the site or adjoining sites.
K. Regulate signs in a manner so as to not interfere
with, obstruct vision of or distract motorists, bicyclists
or pedestrians.
L. Require signs to be constructed, installed and
maintained in a safe and satisfactory manner.
M. Preserve and enhance the natural and _ scenic
characteristics of this waterfront resort community.
The sign ordinance also contains a provision under its
“General Standards” section that provides, “not
withstanding any other provision of this Code, no sign
shall be subject to any limitation based on the content
of the message contained on such sign.” § 3-1804.H.
Similarly, there is no distinction between commercial or
non-commercial speech within the sign ordinance. The
sign ordinance regulates four categories of signs: 1) § 3-
1803 prohibits twenty-five different types of signs (such
as portable signs, vehicle signs and roof signs); 2) § 3-
1805 allows twenty different types of signs without a
permit (such as safety or warning signs, holiday
decorations, garage or yard sale signs and for sale
signs); 3) § 3-1806 proscribes certain height, area and
lighting requirements for residential signs (subdivision
development and multifamily entry signs and school
and park identification monument signs) and non-
residential signs (freestanding, monument, transit
ananeneeeneameeiememmmteneeeenememiaaes
22a
shelter and attached signs) - these signs require a
permit under the development review process; and 4) §
3-1807 permits signs that comply with eight
enumerated “flexibility criteria” n2 that may be
approved under the City’s Comprehensive Sign
Program. The sign ordinance also contains a provision,
§ 3-1804, titled “General Standards,” that prescribes
building and electrical code compliance and regulates
setback, lighting and illumination, banners and flags,
gasoline price signs, and time and temperature signs.
The Permitting Process
Article 4 of the City’s Code, titled “Development
Review and Other Procedures,” sets forth the process
for obtaining various levels of permit approval and the
appeals process. Division 10 of Article 4 requires that
the application for approval of a sign “shall be reviewed
and approved by the community development
coordinator as a level one approval.” n3 The process for
a level one approval is set forth in Division 3 of Article
4, with appropriate references to the appeals process
set forth in Division 5 -- § § 4-504 and 206 (community
development board appeals and public hearings) and §
4-505 (appeals to hearing officer). The relevant
divisions of Article 4, § § 4-206, 301-303, 501-505 and
1001-1007 are attached to this Order as Appendix 2.
The initial step in the permitting process is to complete
the application process. Once submitted, a
determination of completeness shall be made by the
community development coordinator within five days. §
4-202C.1. Within five or ten working days after that
determination is made, the community development
coordinator or members of the development review
23a
committee (depending on whether the level one
approval sought is for “standard development” or
“flexible standard development”) shall determine
whether the application is “legally sufficient” (defined
as “whether the required application materials have
been prepared in a substantively competent manner”).
§ 4-202C.2 and 3. If insufficient, the application is
deemed withdrawn.
Once an application is deemed complete and legally
sufficient, the development review committee shall
review the application in accordance with the applicable
division of the Code; in the case of a sign permit, Article
3, Division 18. § 4-202.D. An appeal may be taken to
the Community Development Board which holds a
“quasi-judicial public hearing.” See § § 4-501, 504, 206.
A hearing officer has the authority to hear appeals from
the Community Development Board. § 4-501.B.
There are no time limits in the Code for an appeal to be
heard. n4 See § § 4-504 and 206 (community
development board appeals); § 4-505 (hearing officer
appeals of community development board decisions,
which are required to establish a “timely date” for the
hearing, and must issue a decision within 45 days of the
hearing). To overturn a decision, the Community
Development Board must find by “substantial
competent evidence” that the decision (1)
“misconstrued or incorrectly interpreted” the Code, (2)
is in “harmony with the general intent and purpose” of
the Code and (8) will not be “detrimental to the public
health, safety and general welfare.” § 4-504.C.
24a
Severability Provision
Under the Code’s “General Provisions,” there is a
severability provision that reads as follows: “should any
section or provision of this Development Code be
declared to be unconstitutional or invalid by a court of
competent jurisdiction, such decision shall not affect the
validity of this Development Code as a whole or any
part thereof other than the part so declared to be
unconstitutional or invalid.” § 1-107.
Granite State’s Applications
Clearwater’s ordinance limits freestanding billboard
signs in excess of fourteen feet in height and in excess
of sixty-four square feet in area per side. § 3-1806.B.
Plaintiff applied to Clearwater for permission to post a
65 foot high and 672 square foot billboard sign on each
of its leased parcels of property. (Charles nd Aff. at PP
6-8). Clearwater’s Planning Department denied the
applications on August 10, 2001, the same day they
were submitted. (Amded. Compl., P 11; Tarapini né6 Aff.
at P9). On each application, Clearwater noted the
reason for denial - “Refer to Section 3 - 1806(B1)” and
“Height, Size and Numbers of Signs (Total Square Feet
on Parcel).” (Charles Dep., Exh. 1-5). The Plaintiff's
proposed signs were more than four times the allowable
height and ten times the allowable area. Granite State
did not appeal the initial denial of the sign permits and
instead, on August 31, 2001, initiated this action by
filing an eleven count complaint against Clearwater, its
Mayor, Defendant Brian Aungst, Sr., and its City
Manager, Defendant William Horne. (Charles Dep. at
92; Tarapini Aff. P9).
25a
The Individual Defendants
Defendants Aungst and Horne appear to have been
sued in both their individual and official capacities.
Neither of these Defendants was personally involved in
the denial of Granite State’s billboard permit
applications and did not learn about the permit
applications until after their denial. (See Aungst and
Horne Affs.). Neither Defendant has had any verbal or
written communications with Granite State or its
principals, nor have they ever met with representatives
of Granite State. (Id.).
Il. LEGAL ANALYSIS
A. Individual Defendants’ Motion to Dismiss
The individual Defendants move to dismiss the claims
made against them in both their individual and official
capacities. In their individual capacities, these
Defendants claim that they are entitled to the defense
of qualified immunity for any governmental actions
taken while they served in their capacities of mayor and
city manager. Defendants further maintain that there is
no basis for individual liability because Plaintiff has
failed to make any allegations whatsoever against the
individual Defendants in the Amended Complaint.
Plaintiff opposes the Motion to Dismiss on the basis
that these Defendants have enforced “clearly
unconstitutional restrictions on the fundamental right
of speech,” and as such, they should be held liable in
their individual capacities. Plaintiff appears to argue,
without legal support, that elected or appointed officials
n7 can be _ personally liable for an _ allegedly
unconstitutional ordinance solely by virtue of the fact
26a
that the official is responsible for the enforcement of
the ordinance.
The Court agrees with Defendants that there is no
basis for individual liability in this case because
Plaintiff has not alleged any specific allegations against
these Defendants; that is, Plaintiff makes no claim
against these Defendants for any action taken by these
Defendants, supervisory or otherwise, but instead sues
them personally for an allegedly unconstitutional
ordinance. Moreover, the individual Defendants should
be dismissed because they are entitled to qualified
immunity.
Qualified immunity acts to cloak public officials from
lawsuits unless they have violated “clearly established
statutory or constitutional law of which a reasonable
person would have known.” See Lassiter v. Alabama
A&M Univ., 28 F.3d 1146, 1149 (11th Cir. 1994). The
Eleventh Circuit determines whether a law is clearly
established through a fact-specific analysis that focuses
on the “actual” and “specific details of [a] concrete
case.” Id. at 1150; see also Granite State Outdoor
Advertising, Inc. v. Cobb County, Case No. 1:01-CV-
1376-WBH at 7-9 (attached as Exh. B to Dkt. 51). The
contours of such right must be “sufficiently clear that a
reasonable official would understand what he is doing
violates that right.” Anderson v. Creighton, 483 U.S.
635, 640, 97 L. Ed. 2d 528, 107 S. Ct. 3034 (1987).
Not only are there no specific factual allegations as to
the individual Defendants (who were acting within
their discretionary authority), the constitutional law at
issue in this case is far from clearly established (as this
order will undoubtedly demonstrate). See Naturist
27a
Society, Ine. v. Fillyaw, 858 F. Supp. 1559, 1571 (8.D.
Fla. 1994) (with regard to qualified immunity in First
Amendment case, public officials are not expected to be
more knowledgeable than the courts with respect to the
“complexities of constitutional law”). Accordingly, the
individual Defendants are entitled to qualified
immunity. n&
Defendants also argue that the Amended Complaint
should be dismissed against the individual Defendants
in their official capacities because suits against local
governments in their official capacities are duplicative
of actions against the local government entity itself. n9
The Court agrees. Plaintiff has sued the city of
Clearwater for the same alleged constitutional
violations. Therefore, naming the individual Defendants
in their official capacities is redundant. See Will v.
Michigan Dept. of State Police, 491 U.S. 58, 105 L. Ed.
2d 45, 109 S. Ct. 2304 (1989); Busby v. City of Orlando,
931 F.2d 764 (11th Cir. 1991). Plaintiff's contention that
if the Court invalidates the sign ordinance the inclusion
of the individual Defendants, in their official capacities,
is necessary to insure issuance of the sign permits
previously denied to Granite State is meritless. n10 See
Granite State Outdoor Advertising, Inc. v. Cobb
County, Case No. 1:01-CV-1376-WBH at 5-6 (attached
as Exh. B to Dkt. 51). The Court may direct Defendant
Clearwater, if necessary.
B. First Amendment Analysis
1. Standing
Typically, standing requires that: 1) a plaintiff suffered
an “injury in fact;” 2) that there be a “causal
28a
connection” between the injury and the conduct
complained of, such that the injury is fairly traceable to
the challenged action of the defendant and not the
result of the independent action of some third party not
before the court; and 3) it must be “likely, as opposed to
merely speculative, that the injury will be redressed by
a favorable decision.” See Bischoff v. Osceola County,
Fla., 222 F.3d 874, 883 (11th Cir. 2000). However, for
First Amendment overbreadth challenges, the
requirements for standing are generally more lenient.
Id. at 884.
The Supreme Court recognized overbreadth challenges
as “exceptions” to the general rule of standing for laws
that are written “so broadly that they may inhibit the
constitutionally protected speech of third parties.”
Members of the City Council of Los Angeles v.
Taxpayers for St. Vincent, 466 U.S. 789, 798, 80 L. Ed.
2d 772, 104 S. Ct. 2118 (1984) (addressing an ordinance
banning handbills on public property). Such a challenge,
in essence, permits third party standing for claims on
the grounds that ordinance may pose a “realistic
danger” that the statute itself will “significantly
compromise recognized First Amendment protections
of parties not before the court.” Id. at 801. Generally,
courts have permitted such challenges when the
constitutional rights involve the First Amendment. n11
See, e.g., Sec’y of State of Md. v. Joseph H Munson
Co., Inc., 467 U.S. 947, 957-9, 967-8, 81 L. Ed. 2d 786,
104 S. Ct. 2839 (1984). Nonetheless, it still remains that
a plaintiff must establish that he or she suffered some
“injury in fact” as a result of the defendant’s actions.
Bischoff, 222 F.3d at 884 (citing Virginia v. Amer.
Booksellers Assoc., Inc., 484 U.S. 383, 392, 98 L. Ed. 2d
782, 108 S. Ct. 636 (1988); Munson, 467 U.S. at 958;
29a
National Council for Improved Health v. Shalala, 122
F.3d 878, 883 (10th Cir. 1997); Bordell v. General
Electric Co., 922 F.2d 1057, 1061 (2nd Cir. 1991)).
Defendants contend that Granite State does not have
standing to assert the First Amendment claims it
makes in this case; nor should it be permitted to make
an overbreadth challenge to the Code. Specifically,
Defendants make the argument that Granite State
cannot contend that the section under which it was
denied its permits, § 3-1806.B, which imposes height,
size and location limitations on freestanding signs, is
unconstitutional. (Dkt. # 42 at 19). To the contrary,
Granite State contends that § 3-1806.B is
unconstitutional because: 1) it requires applicants to
seek permission for development review, a procedure
which affords government officials an improper level of
discretion without reference to objective standards; 2)
it requires applicants to file for permits prior to posting
the sign, procedures which are void as impermissible
prior restraints on speech; 3) the section restricts
commercial and non-commercial signs without
satisfying the Central Hudson nl2 analysis; 4) the
section violates equal protection; and 5) it is invalid
because it is inextricably intertwined with the
unconstitutional whole of the sign ordinance,
preventing severance. (Dkt. # 51 at 3). Defendants also
contend that Granite State has not suffered an injury in
fact because it did not participate in the appeals
process. (Dkt. # 74 at 9-15). Defendants further contend
that Granite State does not have standing because it
does not have a “commercial speech interest.”
The Supreme Court has recognized that individuals
with a “commercial interest” in speech may raise a
30a
facial challenge to an ordinance, raising the non-
commercial speech interests of third _ parties.
Metromedia Ine. v. City of San Diego, 453 U.S. 490 at
504, n. 11, 69 L. Ed. 2d 800, 101 S. Ct. 2882. (1981).
Although Defendants acknowledge this holding, they
claim that Granite State has no speech interest because
it has been neither an advertiser nor a billboard
operator, instead it merely obtained leases for
properties upon which billboards would be constructed.
In essence, Defendants argue that these activities are
not sufficient to establish an interest in speech
sufficient to confer standing.
But Granite State claims that it has a commercial
interest in speech. It holds leases on property upon
which it has applied for permission to place billboards.
In fact, Granite State contends that if victorious in this
litigation, it may well choose to build and operate the
signs itself. Clearly, parties with a commercial interest
in speech may assert facial challenges to the First
Amendment, in essence, filing suit on the grounds that
there is an infringement of the rights of third parties as
well as of their own free speech rights. See, e.g.,
Metromedia, 453 U.S. at 504, n.11 (“we have never held
that one with a “commercial interest” in speech also
cannot challenge the facial validity of a statute on the
grounds of its substantial infringement of the First
Amendment rights of others”); but see Metromedia,
453 U.S. at 544-48 (Steven, J., dissenting) (no standing,
even under the “limited exception” for overbreadth, for
“hypothetical cases” of property owners not before the
Court). See also National Advertising v. Ft.
Lauderdale, 934 F.2d 283, 285 (11th Cir. 1991).
3la
The more central issue is whether Granite State has
standing to make a facial challenge to Clearwaters’s
entire sign ordinance on overbreadth grounds. After
extensive review, the Court is constrained to find that
Granite State has standing to make an overbreadth
challenge to those portions of the ordinance that
directly implicate, and could accordingly “chill,” the
First Amendment rights of persons not before the
Court, but not to the appeals portion of the permitting
section as Granite State was not affected in any way by
this provision because it did not appeal the City’s
denial.
The overbreadth doctrine is “manifestly, strong
medicine” that should be use “sparingly and only as a
last resort.” Broadrick v. Oklahoma, 4138 U.S. 601, 613,
37 L. Ed. 2d 830, 93 S. Ct. 2908 (1973). n13 In Taxpayers
for St. Vincent, after analyzing the plaintiffs’ claims to
determine whether they had standing to bring a facial
challenge on overbreadth grounds, the Supreme Court
found that their challenge was only “as applied” to their
activities and heard only the “concrete case” before
them. Taxpayers for St. Vincent, 466 U.S. at 802-3
(plaintiffs did not demonstrate that the ordinance
applies to “any conduct more likely to be protected by
the First Amendment” than their own). For a valid
facial challenge on overbreadth grounds, the Court
found that there must be a “realistic danger that the
statute itself will significantly compromise recognized
First Amendment protections of parties not before the
Court.” Id. at 801. Indeed, the overbreadth of the
statute must “not only be real, but substantial as well,
judged in relation to the statute’s plainly legitimate
sweep.” Id. at 800-1 (quoting Broadrick, 413 U.S. at
615).
32a
There is no _ exact definition of “substantial
overbreadth;” however, the “mere fact that one can
conceive of some impermissible applications of a statute
is not sufficient to render it susceptible to an
overbreadth challenge.” Members, 466 U.S. at 800; see
also Sec’y of the State of Md. v. Joseph H. Munson Co.,
Inc., 467 U.S. 947, 81 L. Ed. 2d 786, 104 S. Ct. 2839
(1984). “The requirement of substantial overbreadth is
directly derived from the purpose and nature of the
doctrine. While a sweeping statute, or one incapable of
limitation, has the potential to repeatedly chill the -
exercise of expressive activity by many individuals, the
extent of deterrence of protected speech can be
expected to decrease with the declining reach of the
regulation.” Taxpayers for St. Vincent, 466 U.S. at 800-
1 (quoting New York v. Ferber, 458 U.S. 747, 772, 73
L. Ed. 2d 1113, 102 S. Ct. 3348 (1982)). In Ferber, the
Court rejected an overbreadth challenge to a statute
prohibiting persons from knowingly promoting sexual
performances by children, even acknowledging that the
statute may reach certain educational materials, finding
that the “arguably impermissible applications of the
statute amount to more than a tiny fraction of the
materials within the statute’s reach.” Ferber, 458 U.S.
at 773.
Accordingly, the Court turns to whether Granite
State’s claims fit within the limited exception to the
standing doctrine for overbreadth challenges. From the
Amended Complaint and Granite State’s motions, it
appears to mount two distinct facial challenges in its
quest to have the ordinance declared unconstitutional:
(1) that Article 3, Division 18 is an unconstitutional
content-based regulation and vests government officials
with “undue discretion,” and (2) that Article 4, the
33a
permitting and appeals section, is an impermissible
“prior restraint” that does not comply with the
requirements of Freedman v. Maryland, 380 U.S. 51, 18
L. Ed. 2d 649, 85 S. Ct. 734 (1965), nl4 because it
contains no time limits for the appeals process.
In Granite State’s first overbreadth challenge, it claims
that the regulations set forth in Article 3, Division 18,
when applied to Granite State, as well as to other third
parties who would be denied a sign permit, are in
‘violation of the First Amendment because the sign
ordinance is impermissibly content-based on its face. In
Granite State’s facial challenge to Article 3, it points to
several specific provisions which it alleges are
constitutionally infirm, but, ironically, not to the
provision under which Clearwater denied Granite
State’s permit applications. Nonetheless, the Court
finds that Article 3 of Clearwater’s ordinance is one
that when applied to speech, in the form of signs, may
effectively chill First Amendment rights. Hence, the
Court is constrained to find that Granite State has
standing to challenge Article 3, Division 18 under the
limited exception to the standing doctrine for a facial
overbreadth challenge.
However, in viewing Granite State’s second argument,
that the lack of time limits on the appeals process
renders it facially invalid, the Court has greater
difficulty in finding that Granite State has standing to
raise a facial challenge that fits within the limited
exception for an overbreadth challenge. Granite State
did not appeal the denial of its permit applications;
instead, it filed this lawsuit. Granite State contends
that it has standing to facially challenge Clearwater’s
permitting process as an _ unconstitutional “prior
34a
restraint” on speech. Plaintiff points to several cases
involving permitting schemes for adult businesses in
which the Court allowed a facial challenge to the
ordinance based on a lack of time limits on the
permitting process. See, e.g., Redner v. Dean, 29 F.3d
1495, 1502 (11th Cir. 1994) (allowing facial challenge for
prior restraint that could result in the “suppression of
expressive activity for an indefinite period of time”).
Defendant acknowledges, as does this Court, that facial
overbreadth challenges are permitted in some
circumstances when a permitting scheme is deemed a
“prior restraint” and fails to comply with the
requirements of Freedman. See Redner, 29 F.3d at
1495; Artistic Entertainment, Inc. v. City of Warner
Robins, 223 F.3d 1306 (11th Cir. 2000) (adult business
ordinance); U.S. v. Frandsen, 212 F.3d 1231 (11th Cir.
2000) (park ordinance regarding assembly); see also
Cannabis Action Network, Inc. v. City of Gainesville,
931 F.3d 761 (11th Cir. 2000) (street closing and sound
ordinance declared facially unconstitutional as “prior
restraint”), judgment vacated, 122 S. Ct. 914 (Jan. 22,
2002) (remanded to consider in light of Thomas v.
Chicago Park). n15 For these requirements to apply,
the permitting scheme must be a censorship scheme.
See Thomas v. Chicago Park, 534 U.S. 316, 122 S. Ct.
775, 780, 151 L. Ed. 2d 783 (2002) (“we have never
required that a content-neutral permit scheme
regulating speech in a public forum adhere to the
procedural requirements set forth in Freedman.”). For
—yeasons discussed infra, the Court finds that
Clearwater’s ordinance is not such a scheme.
Granite State’s initial applications were denied within
the time provisions provided. Granite State did not
35a
seek an appeal of these denials. n16 Hence, it could not
be injured by the lack of time limits in the “ode’s
appeals provisions. Without an actual injury under
Article 4, the Court cannot extend Granite State’s
standing to challenge this Article under the limited
exception for overbreadth, especially in light the
Supreme Court’s guidance to use it “sparingly. Granite
State’s injury lies in the enactment of the sign
ordinance in Article 3, to which the Court has
permitted a facial challenge. n17 See Messer v. City of
Douglasville, Georgia, 975 F.2d 1505, 1514 (11th Cir.
1992) (affirming district court’s holding that Messer
does not have standing to challenge the board of
appeals, as he did not request or receive a hearing - the
appeal in this case had been made by the co-defendant
billboard companies who had since been dismissed from
the case with prejudice).
Moreover, the permitting and appeals process set forth
in Article 4 applies to all development review decisions
by the City, not just to sign permits. As such, the
alleged unbridled discretion of government officials to
arbitrarily delay appeal decisions through the lack of
time limits in Article 4 is not specific just to speech
rights, as Plaintiff alleges with respect to Article 3, but
applies equally to other permitting decisions and
appeals. nl8 Hence, the Court views the reach of
Article 4 as much broader -- implicating many
permitting situations not involving First Amendment
rights.
In conclusion, the Court finds that the permitting
portion of this ordinance, Article 4, has much less
potential to chill the exercise of First Amendment
activity than Article 3. Additionally, there is a very
36a
limited set of third parties whose First Amendment
rights could be chilled under the appeal portion of the
regulation; n19 particularly in light of the City’s
ordinance protecting content of any signs from serving
as a basis for denial. See § 3-1804.H. Accordingly, the
Court declines, for the reasons discussed supra, to
permit Granite State to raise this type of hypothetical
scenario in a facial overbreadth challenge to Article 4.
n20 Rather than speculate on a hypothetical case
involving an individual whose sign permit was
arbitrarily and impermissibly denied, the Court saves
this question for another day, and for a plaintiff who has
actually been injured by such a delay. See Messer, 975
F.2d at 1514. Granite State has suffered no such injury.
n21
2. Severability
Granite State argues that any _ unconstitutional
provision(s) of the sign ordinance cannot be salvaged by
simply severing them. Generally, Granite State argues
that severance would remove incentives to challenge
unconstitutional regulations, and specifically, that any
alleged sections of Clearwater’s sign ordinance which
violate equal protection are “inextricably intertwined”
with the “whole of the sign ordinance” and to sever any
permit requirements from the ordinance would remove
“the very heart of the ordinance and impermissibly
leave the ordinance more restrictive of speech.” (Dkt. #
51 at 3, 13), citing Rappa v. Newcastle County, 18 F.3d
1043, 1073 (8rd Cir. 1994).
On the contrary, Defendants contend that any
unconstitutional portions of the ordinance may be
severed and specifically point to the severability clause
37a
contained within the Code to evidence Clearwater’s
legislative intent to severe any portions of the Code
found to be invalid. n22 Severability of a local ordinance
is a question of state law. See City of Lakewood v.
Plain Dealer Publishing Co., 486 U.S. 750, 759, 100 L.
Ika. 2d 771, 108 S. Ct. 2188 (1988); see also
Metromedia, 453 U.S. at 521 n.26. Under Florida law,
the test for severability is as follows: “when a part of a
statute is declared unconstitutional, the remainder of
the act will be permitted to stand provided: (1) the
unconstitutional provisions can be separated from the
remaining valid provisions, (2) the legislative purpose
expressed in the valid provisions can be accomplished
independently of those which are void, (3) the good and
bad features are not so inseparable in substance that it
can be said that the legislature would have passed the
one without the other, and (4) an act complete in itself
remains after the invalid provisions are stricken.”
Waldrup v. Dugger, 562 So. 2d 687, 693 (Fla. 1990)
(challenging application of revised gain time statute for
habeas corpus challenge). The Florida Supreme Court
simply stated: “the severability of a statutory provision
is determined by its relation to the overall legislative
intent of the statute of which it is a part, and whether
the statute, less the invalid provisions, can still
accomplish this intent.” Ray v. Mortham, 742 So. 2d
1276, 1280 (Fla. 1999) (citations omitted).
Courts have noted that the existence of a severability
clause carries with it a “presumption” that the
legislative authority would have enacted the remaining
provisions and that the preference for severance is
“particularly strong in cases containing a severability
clause.” See Major Media of Southeast, Inc. v. City of
Raleigh, 621 F. Supp. 1446, 1454 (E.D. N.C. 1985)
es
38:
(upholding severability clause). Cf. National
Advertising v. Town of Niagara, 942 F.2d 145, 148 (2nd
Cir. 1991) (finding severance improper despite
existence of severability clause); United States v.
Jackson, 390 U.S. 570, 585 n.27, 20 L. Ed. 2d 138, 88 S.
Ct. 1209 (1968) (the ultimate determination of
severability rarely turns on the presence or absence of |
a severability clause). Of course, in construing an
ordinance for purposes of a facial challenge, the Court
must construe any ambiguities in the ordinance as a
whole in a manner which avoids any constitutional
problems, if possible. See Southlake Property Ass., Ltd.
v. City of Morrow, Ga., 112 F.3d 1114, 1119 (11th Cir.
1997).
With these guiding principles in mind, the Court
addresses Granite State’s constitutional challenges to
Clearwater’s sign ordinance, and specifically addresses
Defendants’ suggestions that certain provisions, if
found to be invalid, may be severed. (See Dkt. # 42 at n.
9, 14, 15). In large measure, the Court finds, as set forth
in detail infra, that most of the provisions Plaintiff
alleges are “content-based” or permit “undue
discretion” by government officials, do not do so. There
are, however, some provisions regarding which the
Court agrees with Plaintiff, but finds that those
provisions are severable, n23 such that the legislative
purpose of Clearwater’s sign ordinance is preserved
and speech is not more restricted after severance.
3. Content Based v. Content Neutra! Distinction
It is truly a Herculean task to wade through the mire of
First Amendment opinions to ascertain the state of the
law relating to sign regulations, beginning with the
a
39a
Supreme Court’s leading decision on_ billboard
regulations in Metromedia, Inc. v. City of San Diego,
453 U.S. 490 at 570, 69 L. Ed. 2d 800, 101 S. Ct. 2882
| (1981) (plurality decision) (Rehnquist, J., dissenting,
| who referred to the plurality decision as a “virtual
| Tower of Babel, from which no definitive principles can
be clearly drawn”). As the Court more fully discusses
| below, there is much variety and diversity of opinions
| in this area (in addition to sign ordinances, courts have
reviewed First Amendment challenges to adult
| entertainment clubs, tobacco advertising and the noise
volume of music concerts), suggesting that
constitutional law on this subject is far from clear.
One of Granite State’s primary arguments, based in
large part on the plurality decision in Metromedia, is
that the Clearwater sign ordinance is unconstitutional
because it is an impermissible content-based ordinance
that cannot survive strict scrutiny review. In
Metromedia, Justice White, writing for the plurality,
found that San Diego’s sign ordinance was
unconstitutional because it impermissibly favored
commercial over non-commercial speech. It was also
noted that although the ordinance’s general prohibition
of signs created the “infringement,” the additional
exceptions to the prohibition “are of great significance
in assessing the strength of the city’s interest in
prohibiting billboards.” Metromedia, 453 U.S. at 520.
Relying on this argument and its claim that the
ordinance favors commercial speech over non-
commercial speech, Granite State cites to many of the
exceptions contained in Clearwater’s sign ordinance
(for example, construction signs or for sale signs) as |
evidence that the sign ordinance is content-based. n24
40a
The “Catch-22” of Sign Regulations
This almost-conclusory mandate that an ordinance with
a category or exception for a sign based on its content
automatically makes the ordinance unconstitutional per
se is the proverbial “catch-22” confronting many cities
and municipalities when they attempt to regulate signs
in their communities. See Metromedia, 453 U.S. at 560
(Burger, J. dissenting,) (“having acknowledged the
legitimacy of local government authority, the plurality
largely ignores it”). n25 Granite State’s argument
clearly demonstrates this “catch-22”: (1) it is
permissible for the government to regulate, or prohibit,
signs to further legitimate governmental interests
(Metromedia); (2) any sign prohibition must provide an
exception for “For Sale” signs (Linmark); (3) exceptions
or regulations of signs requiring a reading of their
message are content-based ( Nat’l Advertising Co. v.
Town of Niagara, 942 F.2d 145 (2nd Cir. 1991); (4)
content-based sign regulations are generally
unconstitutional when subject to strict scrutiny review
( Burson v. Freeman, 504 U.S. 191, 119 L. Ed. 2d 5, 112
S. Ct. 1846 (1992)); and (5) since an exemption allowing
“For Sale” signs necessarily requires one to read the
words “for sale” on the sign, it is impossible to draft a
sign ordinance that is constitutional. Some courts have
followed this conclusory theory, see, e.g., North
Olmsted Chamber of Commerce v. City of North
Olmsted, 86 F. Supp. 2d 755 (N.D. Ohio 2000); Nat’l
Advertising Co. v. Town of Babylon, 900 F.2d 551 (2nd
Cir. 1990); however, others have tried to formulate
ways to avoid this “catch-22.” See, e.g., Rappa v.
Newcastle County, 18 F.3d 1043 (8rd Cir. 1994). n26
Ala
Review of Relevant Cases
It is instructive to review the Supreme Court’s seminal
decisions in this area. Justice Stevens, who filed a
dissenting opinion in Metromedia, authored the Court’s
majority opinion in Members of the City Council of Los
Angeles v. Taxpayers for St. Vincent, 466 U.S. 789, 80
L. Ed. 2d 772, 104 S. Ct. 2118 (1984), which discussed at
great length the general principles, history and other
cases involving the First Amendment, beginning with
the country’s first printing presses and censorship of
movies, n27 stressing the “unacceptable risk of
suppression of ideas.” Id. at 797, 804 (concluding that
the “general principle that has emerged from this line
of cases is that the First Amendment forbids the
government to regulate speech in ways that favor some
viewpoints or ideas at the expense of others”). In
Taxpayers for St. Vincent, the Court upheld an
ordinance prohibiting the posting of handbills and signs
on public property and public objects (like utility poles),
because it found that it was within that city’s
constitutional power to attempt to improve its
appearance, an interest that was “basically unrelated to
the suppression of ideas” and the ordinance was
reasonably tailored to do so, with available alternative
channels of communication. Id. at 804, 813-15. The
Court held “there is not even a hint of bias or
censorship in the City’s enactment or enforcement of
this ordinance. There is no claim that the ordinance was
designed to suppress certain ideas the City finds
distasteful or that has been applied to Appellees
because of the views that they express.” Id. at 804. This
decision suggests that an ordinance need only be
subject to strict scrutiny if it serves to regulate a
particular viewpoint or amounts to censorship. n28
42a
This content-based theory warranted mention by the
Court in a non-sign case, Cincinnati v. Discovery
Network, 507 U.S. 410, 123 L. Ed. 2d 99, 113 S. Ct. 1505
(1993) (Stevens, J. delivered the majority opinion).
Discovery Network involved the city’s attempt to
enforce an ordinance banning “commercial handbills” on
public property by ordering the removal of newsracks
from which the “commercial handbills” were
disseminated. These newsracks looked just like those
containing newspapers. The Court found the ordinance
unconstitutional primarily because it was not a
“reasonable fit” of the city’s legitimate interests in
aesthetics and safety and their chosen means of
furthering those interests, a “sweeping ban” on the
“commercial handbill” newsracks which were only a
small fraction of the total newsracks on the street. Id.
at 428-29.
After so holding, the Court discussed the content-based
versus content-neutral distinction, finding that the ban
on newsracks with “commercial handbills” was
impermissibly content-based. Id. at 428-9. Beginning
with the premise that the government may impose
“reasonable restrictions on time, place, or manner of
engaging in protected speech provided that they are
adequately justified ‘without reference to the content of
the regulated speech,“ the Court was not persuaded
that the justification of preserving aesthetics aad safety
adequately justified the regulation because “the very
basis of the regulation is the difference in content
between ordinary newspapers and commercial speech.”
Id. at 429. n29 Although this is one of the few
commentaries by the Supreme Court on this specific
issue, it does not appear to be critical to the Court’s
43a
holding, which focused primarily on the lack of
“reasonable fit.” n30
Karlier, in Ward v. Rock Against Racism, 491 U.S. 781,
105 L. Ed. 2d 661, 109 S. Ct. 2746 (1989), the Court
upheld a municipal regulation that required performers
to use sound technicians and a sound system provided
by the city, finding that it did not violate the free
speech rights of the performers. The Court held that
the regulation (of the expressive activity of music) is
content-neutral, “so long as it is justified without
reference to the content of the regulated speech.” Id. at
791 (citations omitted), The Court found the
government’s purpose of controlling noise levels at
bandshell events was a “controlling consideration. . .
[that had] nothing to do with the content.” Id. at 791-2
(citations omitted). The Court also considered, and
rejected, the plaintiffs argument that the statute was
unconstitutional on its face because it placed “unbridled
discretion in the hands of city officials charged with
enforcing it.” Id. at 793 (citations omitted). The Court
concluded that the city’s regulation was narrowly
tailored to serve a significant government interest by
protecting its citizens from unwelcome noise. Id. at 796.
It is also instructive to review the Supreme Court’s
ruling in Ladue v. Gilleo, 512 U.S. 43, 129 L. Ed. 2d 36,
114 8. Ct. 2038 (1994). This case involved an ordinance
that banned all residential signs except those falling
within one of ten exemptions. The petitioner resident
wanted to place a sign about the war in the Persian Gulf
-- first on her front lawn, and when that was denied,
then in the window of her home. Id. at 45-46. The Court
found that the ordinance violated the resident’s right to
free speech, in large part because there were no
44a
alternative means of communication for her. Id. at 54.
The Court found that as a resident, the plaintiff was
“almost completely foreclosed in any venerable means
of communication that is both unique and important.”
Id. As Justice O’Connor added in her concurrence, the
Court circumvented its “normal inquiry,” which first
determines whether a regulation is content-based or
content-neutral, then applies the appropriate level of
review (ie. strict or intermediate serutiny). Id. at 59
(O’Connor, J., concurring). Justice O’Connor even goes
so far as to note that regulations are “occasionally
struck down because of their content-based nature,
even though common sense may suggest that they are
entirely reasonable. . . the content distinctions present
in this ordinance may, to some, be a good example of
this.” Id. at 60.
It is equally instructive to review the Supreme Court’s
most recent rulings on the facial constitutionality of a
municipal park ordinance as reviewed under the First
Amendment. See Thomas v. Chicago Park Distr., 534
U.S. 316, 122 S. Ct. 775, 151 L. Ed. 2d 783 (2002).
Thomas involved a municipal park ordinance requiring
individuals to obtain a permit before conducting events
for more than fifty persons and providing an application
process with a fourteen day time limit for granting or
denying the application. Applications could be denied
on any of thirteen specific grounds. An applicant is
given seven days to appeal the decision on the
application after which it may seek judicial review in
state court by common law certiorari. The plaintiffs in
Thomas sought to secure a permit to hold a rally
advocating the legalization of marijuana. Upon the
denial of their application, they filed an action alleging
that the ordinance was unconstitutional on its face. The
45a
Supreme Court found otherwise, upholding the
ordinance as content-neutral.
This Court notes that most of Chicago Park’s listed
grounds to deny a permit, eleven of which are noted in
footnote 1 of the Court’s opinion, are decidedly content-
neutral. 534 U.S. at 777 n.1. For example, a permit may
be denied n31 if the application is not complete, the
application fee is not attached, or the applicant is
legally incompetent to contract. Id. Yet, interestingly,
others may be construed as being more “content-
based.” For example, a permit may be denied if the
“use or activity intended by the applicant would
present an unreasonable danger to the health or safety
of the applicant, or other users of the park . . . or the
public” or a permit has previously been granted
authorizing uses that “do not reasonably permit
multiple occupancy of the particular park or part
thereof.” Id. But these grounds are clearly not using
any content distinction as a censorship scheme nor are
they an attempt to limit activities in the park based on
the applicant’s viewpoint. In fact, the Court upheld the
park ordinance as a “content-neutral time, plan and
manner regulation,” finding that the licensor is not
authorized to “pass judgment on the content of the
speech” and that “none of the grounds for denying a
permit has anything to do with what a speaker might
say.” 1228S. Ct. at 779.
In comparison, the Supreme Court did not agree with
the plaintiffs that the park ordinance was like the
censorship scheme in Freedman v. Maryland, n32 which
would have required that litigation be initiated by the
park district every time it denies a permit and that the
ordinance specify a deadline for judicial review. 122 S.
ee
ane
46a
Ct. at 779. Specifically, the Court found that the park’s
licensing scheme was not “subject matter censorship”
and as a “content-neutral time, place, and manner
regulation of the use of a public forum,” it does not have
to adhere to the procedural requirements set forth in
Freedman. 122 S. Ct. at 779-80. The Court also found
that government officials were not given unduly broad
discretion in determining whether to grant or deny a
permit. 122 S. Ct. at 780-81.
Application to Clearwater Ordinance
Of course, Defendants argue that the Clearwater’s sign
ordinance is similar to the ordinance in Thomas in that
the requirements of Freedman do not apply because it
is content-neutral. Defendants further maintain that if
Clearwater’s Code were subject to a more limited
variation of the Freedman requirements, n33 it would
meet this higher level of review because the sign
permitting decisions must be made within a limited
time period and are subject to judicial review. (Dkt. #
42 at 23). Granite State opposes this argument in part
because it believes that the Clearwater ordinance is not
content-neutral, and also because government officials
are allowed undue discretion (as discussed infra).
One of the few issues that is clear under the Supreme
Court’s decision in Metromedia is that government is
permitted to regulate speech through sign ordinances
that are not content-based, provided they are narrowly
tailored to further the significant government interests.
Metromedia, 453 U.S. at 511-12, 516. Once a regulation
is found to be viewpoint-neutral, it is subject to
intermediate scrutiny, which requires that the state
demonstrate that: 1) the act serves a substantial
pe ge ee
47a
governmental interest (unrelated to the suppression of
free expression), and 2) it is narrowly drawn to serve
that interest without unnecessarily interfering on First
Amendment freedoms (that is, the restriction in First
Amendment freedoms is no greater than is essential to
the furtherance of the interest). Taxpayers for St.
Vincent, 466 U.S. at 805. The Eleventh Circuit
summarized that to uphold a_ viewpoint-neutral
regulation of speech, a government must show that “1)
it has the constitutional power to make the regulation,
i 2) an important or substantial government interest
unrelated to the suppression of free speech is at stake,
and 3) the ordinance is narrowly drawn to achieve its
desired ends, leaving other channels for the
communication of information.” Messer v. City of
Douglasville, Ga., 975 F.2d 1505, 1510 (1992). Indeed, in
Messer, the Eleventh Circuit upheld a limit on the use
of portable signs as a partial solution for its aesthetic
concerns, stating “[since] it could have prohibited all
portable signs in furtherance of this interest, by
3 allowing a limited number, it is in fact more narrowly
; tailoring the restrictions to meet its purpose.” Messer,
975 F.2d at 1514. However, it need not be the least
restrictive means possible. See Rock Against Racism,
491 U.S. at 781. And, the ordinance should leave open
ample alternative channels of communication.
DU Ahk AEP a Sey RL Aare Tk 2D) i
The Supreme Court specifically addressed two
“significant government interests” in Metromedia --
traffic safety and aesthetics of the community.
Metromedia 453 U.S. at 509-10 (“there is nothing here
to suggest that these . . . accumulated, common-sense
judgments of local lawmakers and of the many
reviewing courts that billboards are real and
substantial hazards . .. are unreasonable ... we reach a
48a
similar result with respect to the second asserted
justification for the ordinance -- advancement of the
city’s esthetic interests. It is not speculative to
recognize that billboards by their very nature,
wherever located and however constructed, can be
perceived as an esthetic harm”) (citations and
quotations omitted). It is also clear from the decision in
Taxpayers for St. Vincent that a state may legitimately
exercise its police powers to advance its aesthetic
interests and traffic safety. See Taxpayers for St.
Vincent, 466 U.S. at 806-07 (in effect affirming
Metromedia’s holding that a city’s aesthetic interests
are sufficiently substantial to provide an acceptable
justification for a content-neutral prohibition against
the use of billboards). See also Messer, 975 F.2d at
1510 (it is “well settled that both traffic safety and
aesthetics are substantial governmental goals”);
Southlake Property Assoc., Ltd. v. City of Morrow, Ga.,
112 F.3d 1114, 1116 (11th Cir. 1997) (recognizing
Morrow’s right to “clean, aesthetically pleasing and safe
business thoroughfares”); Harnish v. Manatee County,
Fla., 783 F.2d 1535 (11th Cir. 1986) (“prohibition of
portable signs to eliminate aesthetic blight passed
muster under the First Amendment”).
But what is not clear from Metromedia, or the Court’s
other decisions, is exactly how a city or municipality can
constitutionally regulate signs to further these
interests. Many courts, like this one, and many
commentators, are concerned that local governments
have been placed in a tenuous and near impossible
position in drafting a constitutional or content-neutral
sign ordinance. See, e.g., Cordes, Mark, “Sign
Regulation After Ladue: Examining the Evolving
Limits of First Amendment Protection,” 74 Neb. L.
ee
49a
Rev. 36 (1995); Bond, R. Douglass, “Making Sense of
Billboard Law: Justifying Prohibitions and
Exemptions,” 88 Mich. L. Rev. 2482 (1990).
In essence, courts are left to define the constitutional
perch upon which local governments may rest on the
slippery slope of permissible content-neutral
regulations. It is impossible not to acknowledge, as this
Court does, that a sign ordinance must be justified by
something other than its content, stressing Justice |
Stevens’ opinion that the First Amendment (and the
resulting content-based distinction) was created to
protect speech from the dangers of government
censorship and to stop the government from
suppressing the expression of ideas and public debate
through the guise of regulation. Ward v. Rock Against
Racism, 491 U.S. 781, 105 L. Ed. 2d 661, 109 S. Ct. 2746
(1989). See also Members of the City Council of the
City of Los Angeles v. Taxpayers for St. Vincent, 466
U.S. 789, 8) L. Ed. 2d 772, 104 S. Ct. 2118 (1984); Rappa
v. Newcastle County, 18 F.3d 1043 (3rd Cir. 1994),
What makes the content-based versus content-neutral
distinctionso difficult in cases involving sign ordinances
is that, by their very nature, signs are speech and thus
can only be categorized, or differentiated, by what they
say. This makes it impossible to overlook a sign’s
“content” or message in attempting to formulate
regulations on signage and make exceptions for
distinctions required by law (i.e., for sale signs) or for
those signs that are narrowly tailored to a significant
governmert interest of safety (ie, warning or
constructim signs). For example, there is simply no
other wayto make an exemption or classify a for sale
sign as a fir sale sign without reading the words “For
50a
Sale” on the sign, or classifying a sign as a warning sign
without reading the words “Warning Bad Dog” on the
sign. In many cases, this classification raises the “red
flag” of an impermissible n34 “content-based”
regulation. See Metromedia, 453 U.S. at 565 (Burger,
J. dissenting) (referring to differentiating among topics
and “noncontroversial things” and “conventional” signs
such as time-and-temperature signs, historical markers,
and for sale signs).
Hence, in looking at the general principles of the First
Amendment as the Court did in Taxpayers for St.
Vincent, the real issue becomes whether the
distinctions or exceptions to a regulation (as well as any
areas of government discretion) are a disguised effort
to control the free expression of ideas or to censor
speech. Common sense and rationality would dictate
that the only method of distinguishing signs for
purposes of enforcing even content-neutral regulations,
such as number, size or height restrictions, is by their
message. For example, a regulation permitting a
freestanding billboard sign to be larger than a political
yard sign which is larger than an address sign is a
differentiation based on content (albeit for purposes of
regulating size). This should not, on its own, render an
ordinance unconstitutional. Indeed, it appears to be a
matter of semantics. n35 In rendering its opinion today,
this Court focuses on whether the government
regulation is trying to impermissibly censor speech or
limit the free expression of ideas.
The Court finds that Clearwater’s ordinance is, in
general, not content-based and therefore does not
require strict scrutiny review. However, in making this
finding and given the guiding principles set forth supra
sishhiaiidad iaeahink
5la
regarding severance, the Court finds that some
provisions of the sign ordinance are impermissible, but
severable, eliminating any unjustified content-based
distinctions and preserving the content neutrality of
the sign ordinance. n36
Specific Provisions of Clearwater’s Ordinance
InitiaHy, the Court addresses two patently inconsistent
provisions in Clearwater’s ordinance regulating window
signs. Section § 3-1803.U prohibits temporary window
signs in residential areas whereas § 3-1805.Q allows
window signs “up to eight square feet in area... on any
window area provided such sign does not exceed 25
percent of the total area of the window where the sign
is located. . . in no case shall the cumulative area of all
window signs erected exceed 24 square feet in area.”
Section 3-1805.Q makes no residential/non-residential
distinction. These provisions are in direct conflict. As
Defendants suggest, the Court can easily sever § 3-
1803.U, leaving § 3-1805.Q regulating window signs. In
doing so, the Court thus construes Clearwater’s sign
ordinance, as it must, in such a way as to preserve its
constitutionality. Additionally, the Court succeeds in
increasing, instead of restricting, speech, by severing §
3-1803.U, rather than § 3-1805.Q.
The Court next turns to § 3-1803 which lists twenty-six
types of signs that are prohibited, such as roof signs,
portable signs or signs that present traffic or
pedestrian hazards. Section 3-1803.T prohibits “snipe”
signs. This is defined as “an off-premises sign which is
tacked, nailed, posted, pasted, glued or otherwise |
attached to trees, poles, stakes, fences or to other |
objects.” § 8-102. But Clearwater’s sign ordinance
52a
already prohibits signs attached tc trees in § 3-1803.R
and allows attached signs in § 3-18)6.B.3. To the extent
the portion of the definition of a snipe sign prohibits
attaching signs to “other objecs” contradicts the
provision allowing attached signs, it cannot stand.
Accordingly, in keeping with the guiding principles set
forth supra regarding severance, the Court finds that
part of the definition of snipe signs is severable and
must therefore be stricken.
In another prevision of this section, § 3-1803.B, n37 the
Court finds that this provision makes an unjustified
content-based _ distinction on _ these signs for
governmental and public purpose sgns. Like Discovery
Network, it does not appear that tlere is a “reasonable
fit” in making a distinction betwee: governmental and
public purpose signs (for a limited ime and frequency)
and non-governmental and non-ptblic purpose signs
(for a limited time and frequency). In furthering the
governmental interests of the aesthetics and traffic
safety, the Court can discern no justifiable distinction
between these types of signs as it relates to the
government interests of aesthetics and traffic safety.
n38 Moreover, the existence >f this provision
undermines the content-neutrality o the ordinance.
Accordingly, under the general principles guiding
severance set forth supra, the Cour: strikes this entire
provision. Because this provision isincluded in the list
of prohibited signs, the Court findsthat it is unable to
sever just the portion of the provisin which makes the
content-based distinction (goverrment and public
purpose signs) as that would be result in a greater
restriction on speech by totally bannng balloon, cold air
inflatables, streamers and pennants.139
a ee
53a
Granite State also contends that § 3-1803.Y n40 is an
impermissible content-based distinction that renders
the ordinance unconstitutional. The Court disagrees.
This section forms the “catch-all” provision in the list of
prohibited signs. Granite State seems to argue, in a
conclusory fashion, that this provision is invalid simply
because it prohibits signs not specifically enumerated
within the Code. Finding the ordinance content-neutral,
the Court does not reach the same conclusion.
Plaintiff attacks only two provision of § 3-1804, which
sets forth “General Standards” for Clearwater’s sign
ordinance. In reviewing this section, the Court finds
that it does not contain impermissible content-based
distinctions.
Specifically, Granite State contends that § § 3-1804.E
and F are impermissible content-based exceptions that
render the ordinance unconstitutional. These provisions
are contained in the part of the ordinance addressing
“General Standards” and specifically regulate the
placement, size and location of gasoline price signs
(subsection E) and time and temperature signs
(subsection F). The Court again disagrees with
Plaintiffs conclusion. These sign categories and the
regulations therein are good examples of how the Court
finds that this ordinance is content-neutral. These
provisions are not an attempt to censor speech or
enforce regulations based on viewpoint -- a time and
temperature sign or gasoline price sign has no
viewpoint, it merely relates factua! information. Hence,
these provisions are not an attempt to censor speech or
limit the free expression of ideas -- especially in light of
Clearwater’s specific prohibition on placing any
5da
limitation on a sign based on the content of the
message. See § 3-1804.H.
Section 3-1805 contains a list of twenty types of signs
that are “oermitted without a permit.” By far the most
controversial provision (and one which has_ been
similarly attacked in other cases), is the provision on
temporary yard signs and corresponding time limits to
display these types of signs.
Temporary Yard Signs
Granite State also contends that Clearwater’s
regulations on temporary yard signs set forth in § 3-
1805.N are unconstitutional. There are two regulations
on the size and duration of temporary yard signs: (1)
yard signs “for each political candidate or issue for each
frontage per parcel of land” are permitted “no sooner
that 60 days prior to the election for which they were
intended, and shall be removed within seven days after
the election for which they are intended,” not to exceed
six square feet in area on residential land or thirty-two
square feet of total sign face area on non-residential
land, and (2) “other” temporary signs are allowed to be
displayed in residential areas”’no more than three
times a year for a total of 90 days during a one year
period” and may not to exceed six square feet in size.
The Supreme Court has upheld the “unique and
important” right of residents to post political signs at
their residences. See City of Ladue v. Gilleo, 512 US.
43, 129 L. Ed. 2d 36, 114 S. Ct. 2038 (1994) (finding that
sign ordinance banning residential signs violated
plaintiffs right to free speech by prohibiting her from
displaying a sign stating “For Peace in the Gulf’ from
seieetnereaanaaisiamsniiaiiiaiiasiiiaeiiiiiaiei
55a
her home). The Court stressed that displaying a sign
from one’s own residence carries a message quite
distinct from placing the sign someplace else or
conveying the same text or picture by other means, “for
it provides information about the speaker’s identity, an
important component of many attempts to persuade.”
The Court also stressed that residential signs are a
fairly cheap and convenient form of communication and
there was not sufficient alternative means for the
plaintiff in Ladue to express her message. 114 S. Ct. at
2045. Given the priority the Supreme Court placed. on
political signs at residences, Clearwater has not banned
yard signs, but merely placed time limits and size
limitations on the yard signs in this provision.
Additionally and significantly, Clearwater also allows
window signs pursuant to the regulations this Court
has upheld in § 3-1805.Q (limiting the signs to no more
than 25% of the window). With this reasonable
alternative of communication available, this case moves
outside the province of Ladue.
Other cases have specifically addressed political speech.
For example, the Court has held that singling out
political speech is not per se unconstitutional. See, e.g.,
Lehman v. City of Shaker Heights, 418 U.S. 298, 41 L.
Ed. 2d 770, 94 S. Ct. 2714 (1974) (upholding
government’s right to refuse to accept political
advertising for space on city transit system buses); see
also. Heffron v. International Society for Krishna
Consciousness, Inc., 452 U.S. 640, 69 L. Ed. 2d 298, 101
S. Ct. 2559 (1981) (upholding government’s right to
limit locations on public fairground to distribute
religious literature). Courts, and commentators, have
also addressed whether a time limitation on political
signs is constitutional. See Whitton v. City of
————
56a
Gladstone, 54 F.3d 1400, 1403-04 (8th Cir. 1995) (thirty
day time restriction on _ political signs is
unconstitutional); Union City Bd. of Zoning Appeals v
Justice Outdoor Displays, Inc., 266 Ga. 393, 467 S.E.2d
875, 882 (Ga. 1996) (striking down time limits of seven
weeks on political signs); Collier v. City of Tacoma, 121
Wn.2d 737, 854 P.2d 1046 (Wash. 1993) (prohibiting
political signs sixty days before election was
unconstitutional); see also Gerard, Jules B., “Evolving
Voices in Land Use Law: Election Signs and Time
Limits,” 3 Wash. U.J.L. & Pol. 379 (2000). At least one
case has found a reasonable time limit after the election
to take down an election-related sign is constitutional.
Collier v. City of Tacoma, 121 Wn.2d 737, 854 P.2d 1046,
1057 (Wash. 1993).
In this case, the sixty day time limit, as written, may
actually extend to a total of 127 days if there were a
primary and general election (sixty days for each, plus
seven days after the election). Although this Court
finds this time period reasonable (in some part because
there are sufficient alternative forums of expression
available, i.e., window signs), in the totality of the case
law and commentary on this issue, the Court feels
constrained to find that the sixty day time limit is
unconstitutional, with the exception of the seven day
limit on removing the sign after the election. The Court
finds this seven day time period for removal is a
reasonable limitation justified by Clearwater’s purpose
of controlling aesthetics.
However, for the reasons indicated supra, the Court
finds that the sixty and ninety day time limits are
severable by striking them; thus increasing speech and
maintaining the constitutionality of the ordinance. On
57a
this issue, the Court agrees with the reasoning of a
similar case, Brayton v. City of New Brighton, 519
N.W.2d 243 (Minn. 1994) (uphoiding ordinance that
allowed one non-commercial sign all year long and
additional non-commercial signs during the election
season). Accordingly, the Court finds that § 3-1805.N is
constitutional after the sixty and ninety day time limits
are severed; thus, allowing one temporary yard sign
“for each political candidate or issue” with no time limit
except that the sign(s) shall be removed within seven
days after the election for which it/they are intended,
and the other temporary yard sign (in residential areas)
is allowed without a time limitation. Tne size
requirements set forth in § 3-1805.N remain
unchanged.
Additionally, Plaintiff contends that § § 3-1806.A.1-3
are impermissible content-based provisions. These
sections delineate specific height and size requirements
for certain residential signs that require permits and
development review (i.e., freestanding subdivision
development entry signs, freestanding multifamily
entry signs, school and park identification monument
signs). This section also allows certain commercial signs
(freestanding, monument and transit shelter signs) with
a permit and specifies size, height and illumination
reo» rements. After a thorough review of this section,
the TVourt finds it to be a content-neutral time, place
and manner restriction of certain signs that require a
permit whether they appear in_ residential or
commercial areas. The Court does not agree with
Plaintiff that these provisions of the sign ordinance are
content-based (and therefore per se unconstitutional).
As described supra, these provisions do not limit the
expression of ideas or censor speech.
58a
In conclusion, the Court finds that the regulations
contained in Article 3, Division 18 are not facially
unconstitutional, after certain provisions are severed.
Hence, the Court turns to whether the ordinance
permits undue discretion by government officials.
4. Discretion of Government Officials
Where licensing is applicable to speech, the discretion
of the licensing official must be limited to avoid the
dangers of censorship. As Justice Scalia explained for
the unanimous Court in Thomas:
Of course even content-neutral time, place, and manner
restrictions can be applied in such a manner as to stifle
expression. Where the licensing official enjoys unduly
broad discretion in determining whether to grant or
deny a permit, there is a risk that he will favor or
disfavor speech based on its content. We have thus
required that a time, place, and manner regulation
contain adequate standards to guide the official’s
decision and render it subject to effective judicial
review.
Thomas, 122 S. Ct. at 780 (citations omitted). A court
may look to well-understood or uniformly applied
practice or binding administrative construction to set
limits on official discretion that are not otherwise
apparent from the face of the regulation. See, e.g.,
Griffin v. Sec’y of Veteran Affairs, 288 F.3d 13809, 2002
WL 826931 (Fed. Cir. 2002).
With that in mind, the Court turns to Granite State’s
argument that Clearwater’s sign ordinance does not
provide adequate standards to guide the city’s officials
59a
in approving or denying certain signs or permits. In
some cases, the Court agrees and finds that a particular
section should be stricken. In others, the Court finds
that the government’s discretion is acceptable or
reasonable.
The Court agrees with Granite State that § 3-1805.C.2
n41 vests city officials with too much discretion in
allowing temporary special event or public purpose
signs without a permit. Even though the provision only
relates to signage for a “temporary special event and/or
public purpose,” the approval and sign type, size and
length of display is determined by a government official
on a “case by case basis.” There is no other criteria
guiding the official’s decision. As such, this section
allows the government too much discretion and cannot
withstand constitutional challenge. However, in
analyzing whether this section is severable, the Court
agrees with Defendants that this section may be
severed in its entirety. (See Dkt. 42 at n.8).
The Court also agrees with Granite State that § 3-
- 1803.L n42 vests too much discretion in officials in
granting exceptions for certain signs that are located on
public land with the permission of the city manager or
city commission. Again, the Court finds that the
remainder of this ordinance may be upheld as
constitutional by simply striking the portion of the
ordinance that allows the impermissible discretion.
Accordingly, the Court upholds this section of the
ordinance by striking the words “signs required or
erected by permission of the city manager or city
commission” from the provision, leaving the rest of the
provision unchanged and intact.
60a
Granite State also argues that § 3-1806B. 5 n43 gives
government officials unbridled’ discretion in
determining whether to permit changeable copy signs.
Specifically, Granite State contends that the phrase
“significant public purpose” gives __ officials
impermissible discretion in the permitting process. The
Court disagrees with Plaintiff and finds that the
discretion to ascertain what constitutes a “significant
public purpose” is reasonable, especially given that this
section only applies to signs on public property. See
Taxpayers for St. Vincent, 466 U.S. at 812-15
(upholding regulations on signage on public property);
see also Heffron; Lehman. Accordingly, the Court finds
this regulation, and the discretion to determine a
“significant public purpose,” reasonable.
Granite State also contends that the Comprehensive
Sign Program in § 3-1807 allows officials too much, and
therefore, impermissible, discretion in denying sign
applications. This section is specifically designed to
allow deviations from the requirements of the other
sign provisions (except monument signs) provided they
comply with the flexibility criteria set forth therein.
See § 3-1807.B, C. The flexibility criteria covers signs
designed as part of a architectural theme (C.1); specifies
certain height, size and lighting requirements (C.2 - 4);
does not permit signs that have an “adverse impact” on
“community character” or surrounding property values
(C.5 - 6); eliminates “existing unattractive signage” or
results in “improvement of appearance” (C.7); and
allows signs “consistent with any special area or scenic
corridor plan (C.8). The Court finds that this criteria is
sufficiently objective and clear such that it does not
give officials undue or impermissible discretion.
ci
1a
a
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5. Equal Protection Challenges
Granite State also claims that the ordinance violates
the equal protection clause because it impermissibly
favors commercial speech over non-commercial speech.
The real basis of Granite State’s equal protection claim
is that the ordinance favors “commercial speech of
certain businesses about certain commercial topics
while prohibiting other legal and truthful and
commercial information.” (See Amded Compl., PP 57,
65). Granite State cites, as an example, certain
provisions that allow businesses such as gas stations,
the construction industry, restaurants, and marinas to
post signs while claiming that these provisions do not —
allow other businesses, such as Granite State, to do the
same.
Within the context of commercial speech, the Court
finds that the Code’s exemptions of certain signs, such
aS gas price signs and construction signs, are rationally
related to the advancement of the enumerated purposes
of the Code. Just as the Court has found that the other
exemptions in the Code are a “reasonable fit” between
the Defendants’ means and the ends of satisfying First
Amendment concerns, so it similarly finds for the
commercial speech Plaintiff alleges is impermissibly
favored. As the Court reasoned supra, the ordinance is
content or viewpoint-neutral (after severing certain
provisions) and the exemptions in the ordinance are not
impermissible content-based restrictions.
Moreover, as it relates to commercial speech, the Court
finds that the restrictions are valid under the Central
Hudson analysis because they seek to implement and
directly advance substantial government interests and
62a
reach no further than necessary to accomplish that
objective. As other courts have held, the government
may make certain restrictions on commercial speech,
which is not entitled to as much protection as non-
commercial speech. See, e.g., Board of Trustees of
State Univ. of N.Y. v. Fox, 492 U.S. 469, 477, 106 L. Ed.
2d 388, 109 S. Ct. 3028 (1989); see also Metromedia, 453
US. at 506.
Granite State also contends that the Code violates
equal protection by impermissibly favoring
noncommercial speech over commercial speech. (Dkt. #
19 at pp. 5-6, n.1). Plaintiff provides a rather simplistic
example that a sign measuring sixteen square feet
could be posted in a residential district without a
permit as long as it contained a (commercial) message
regarding construction. (See § 3-1805.F.1). Granite
State correctly points out that if a permit was
requested for the same sign to say “Save the Whales” (a
noncommercial message), the application would be
denied. (See § 3-1805.N.1, 2; 3-1803.Y).
As the Court has ruled supra, Clearwater’s ordinance is
content-neutral (with the appropriate provisions
severed), and as such, the Court finds that the time,
place and manner regulations contained therein are
reasonable and narrowly tailored to advance the
substantial and carefully enumerated government
interests set forth in § 3-1802 of Clearwater’s Code. It
does not impermissibly favor commercial speech over
noncommercial speech. Additionally, Plaintiffs
conclusory example fails to take into account that
private residences are given ample alternatives to
express their viewpoint (to “Save the Whales”) by a
window sign (up to eight square feet in size), a
63a
temporary yard sign, or a flag. The Court finds that the
Code does not violate the equal protection clause.
Further, Clearwater’s ordinance makes no specific
distinction between commercial and non-commercial
speech. The only provision that makes a commercial
speech distinction is set forth in § 3-1803.S which
prohibits signs that are “carried, waved or otherwise
displayed” in public rights-of-way or “in a manner
visible from public rights-of-way.” This provision
contains additional guidance by providing that the
prohibition is “directed toward such displays intended
to draw attention for a commercial purpose, ard is not
intended to limit the display of placards, banners, flags
or other signage by persons demonstrating in
demonstrations, political rallies or similar events.” The
Court finds this restriction is content or viewpoint-
neutral and is justified by Clearwater’s stated interests
in safety and aesthetics. Moreover, the additional
guidance provided in the provision assures that
government officials are not given unbridled discretion.
And, just because public property can be used as a
“vehicle for communication” does not mean that the
Constitution requires such uses to be permitted. See
Taxpayers for St. Vincent, 466 U.S. 789, 814-15, 80 L.
Ed. 2d 772, 104 S. Ct. 2118. Thus, in light of the
viewpoint-neutrality of the ordinance, the additional
guidance provided and the alternative channels of
communication available for expression, the Court finds
this section of the ordinance is valid.
C. Fifth Amendment Claim
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The Court agrees with Defendants for the reasuas set
forth in their motion that Plaintiffs Fifth Amendment
claim is not ripe. (Dkt. # 42 at 44).
D. Damages
In light of its ruling herein, the Court does not reach
the issue of damages or whether Plaintiff has any
vested rights in the denials of its permit applications.
III. CONCLUSION
It is therefore ORDERED AND ADJUDGED for the
reasons set forth herein that:
1. Individual Defendants’ Motion to Dismiss the
Complaint (and Amended Complaint) with Prejudice
(Dkts. # 10, 62) are GRANTED with prejudice- Any
attempt at amendment as to these Defendants would be
futile in light of the Court’s ruling herein.
-2. Plaintiff's Motion for Prelimina:y Injunction (Dkt. #
16) is DENIED. As more fully set forth herein, the
Court finds that Plaintiff has failed to establish the
requisite elements for a preliminary injunction. See
Tefel v. Reno, 180 F.3d 1286, 1295 (11th Cir. 1999).
3. Plaintiff's Motion for Partial Summary Judgment
(Dkt. # 18) is DENIED as specifically set forth herein.
4. Defendants’ Motion for Final Summary Judgment
(Dkt. # 41) is GRANTED as specifically set forth
herein.
5. The Clerk is directed to close this case and enter
judgment against Plaintiff.
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DONE and ORDERED in Tampa, Florida on this 23
day of July, 2002.
JAMES S. MOODY, JR.
UNITED STATES DISTRICT JUDGE
Footnotes
ni The parties have entered into a stipulation
regarding the filing of the Amended Complaint. (Dkt. #
59) wherein they specifically agree that the Amended
Complaint “contains no additional legal theories or
grounds for relief which would affect the Court’s
disposition of the parties’ pending motions.”
n2 The specific flexibility criteria for signs allowed
under the City’s Comprehensive Sign Program involve:
(1) architectural theme; (2) height; (8) lighting; (4) total
area of sign face; (5) community character; (6) property
values; (7) elimination of unattractive signage; and (8)
special area or scenic corridor plan. § 3-1807.C.
ud As further supported by affidavit of Clearwater’s
community development director. See Tarapini Aff., P7.
"4 Appeals from abutting property owners are,
however, placed on the “next scheduled meeting of the
board.” § 4-504.B
n5 Wayne Charles is the president of Granite State.
n6 Cyndi Tarapini is Clearwater’s Community
Development Coordinator and Director of its Planning
Department.
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n7 In the Amended Complaint, Plaintiff identifies these
Defendants, respectively, as serving as Clearwater’s
elected Mayor/Chairman of the City Commission and
appointed City Manager. (Amded Compl., PP3, 4).
n8 The Court makes this finding at the motion to
dismiss stage on the allegations of the complaint; and
were it to consider the issue at summary judgment
after considering the individual Defendants’ affidavits
and other deposition testimony (submitted in support of
its motion for summary judgment) and Plaintiff's
response thereto, the Court would make the same
finding.
n9 Plaintiff concedes that Clearwater is liable for the
official conduct of its city officials. See Dkt. 13 at 7.
nl0 Defendants point out that such a cause of action
may be necessary when there is a claim against a
county or state that is barred by the Eleventh
Amendment. This is not such a case.
nll The overbreadth doctrine is referred to frequently,
yet it remains little understood and a source of much
confusion. See generally, Hill, Alfred, “The Puzzling
First Amendment Overbreadth Doctrine,” 25 Hofstra
L.Rev. 1068 (Summer 1997); Fallon, Jr., Richard H.,
“Making Sense of Overbreadth,” 100 Yale L.J. 853 (Jan.
1991).
nl2 In Central Hudson, the- Court struck down as
unconstitutional a regulation of the New York Public
Service Commission which completely banned
promotional advertising by the utility. Central Hudson
Gas & Electric Co. v. Public Serv. Comm'n, 447 U.S.
67a
557, 65 L. Ed. 2d 341, 100 S. Ct. 2343 (1980). Central
Hudson established a four part test for determining the
validity of government regulations on commercial
speech. Central Hudson, 447 U.S. at 563-64. The first
element deals with the regulation of misleading or
unlawful information. Id. The other elements of an
otherwise valid restriction on protected commercial
speech are: (1) it only seeks to implement a substantial
government interest; (2) it directly advances that
interest; and, (3) it reaches no further than necessary to
accomplish the given objective. Id.; see also
Metromedia, 453 U.S. 490, 69 L. Ed. 2d 800, 101 S. Ct.
2882
nl3 In Broadrick, which dealt with a_ statutory
restriction on political speech activities of government
employees, the Court ffirst established limited
exceptions to the strict standing test in cases involving
“weighty countervailing policies.” Id. at 611 (citations
omitted). A facial overbreadth challenge is one such
exception.
nl4 Freedman involved a content-based censorship
scheme for motion pictures which required certain
procedural safeguards to avoid constituting an invalid
prior restraint: “(1) any restraint prior to judicial
review can be imposed only for a 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 and must bear the
burden once in court.” Freedman, 380 U.S. at 58-59;
F'W/PBS, Inc. v. Dallas, 493 U.S. 215, 227, 107 L. Ed. 2d
608, 110 S. Ct. 596 (1990) (limiting the third
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requirement); see also Thomas v. Chicago Park, 534
USS. 316, 122 S. Ct. 775, 779, 151 L. Ed. 2d 783 (2002).
nl5 Pending the Eleventh Circuit’s reconsideration of
Cannabis Action Network in light of Thomas, this area
of the law remains somewhat unsettled.
nl6 For the initial application review, there is a five day
time limit for review of the application for completeness
and five or ten working days for review of legal
sufficiency. See § 4-202.C. The Court finds this time
limit reasonable. Plaintiff contends that these
provisions are unconstitutional because it is not allowed
to put up its sign, or automatically move to the next
step in the appeals process, if the city fails to act within
the prescribed time limit. Although it is preferable to
have such a mechanism, if it were to reach the issue, the
Court does not find these time periods to be per se
unconstitutional or unreasonable. See Thomas, 122 S.
Ct. at 781 (Chicago Park’s ordinance has reasonable
time limits for application process, but no mechanism if
official fails to act within time limits); see also Outdoor
Systems, Inc. v. City of Mesa, 997 F.2d 604, 613 (9th
Cir. 1993).
nl7 It should be noted that in Plaintiff's facial challenge
to Article 3, it attacks several provisions that involve
signs that do not need permits.
nl18 Although the Court agrees with Granite State that
the permitting process is intertwined with the sign
ordinance, this argument goes to severability of Article :
4, not to whether Granite State has standing to
challenge this part of the Code. Severability is
discussed in detail infra.
69a
nl9 In Thomas, the Court found that if censorship or
favoritism occurred, it would be unconstitutional, but
should be dealt with on a case-by-case basis. Thomas,
122 S. Ct. at 781. Accordingly, if the City appeared to
be impermissibly censoring the content of a sign by
delaying an appeal (despite the Code’s prohibition
against making any determination based on the content
of the sign), the party could file suit on the grounds that
the City’s application of its appeal process to that party
is unconstitutional. Such a suit would challenge the
ordinance “as applied” to that plaintiff instead of on a
facial basis.
n20 Even if Granite State were found to have standing
to raise such a claim, the next determination would be
whether Clearwater’s permitting scheme is an
impermissible “prior restraint” on speech. As the Court
finds infra, Clearwater’s ordinance is content neutral
and under Thomas, the Freedman requirements do not
apply. See Thomas, 122 S. Ct. at 779. The Court would
have to agree, however, that were this permitting
scheme considered a “prior restraint,” the
requirements set forth in Freedman would control, and
the ordinance would be unconstitutional for failing to
have time limits on its appeals process.
n21 The Court notes the irony of Granite State’s claim
and the continuing “catch-22” facing governments in
drafting regulation to survive First Amendment facial
challenges. If Granite State was permitted to challenge
the constitutionality of Article 4 and this Article was
found to be unconstitutional, Granite State would win
this case on the basis of a process that it did not utilize.
This turns the notion of standing on its head -- Granite
State could not have been injured by the lack of time
70a
limits in the appeals provisions when it did not take
advantage of the appeal process! Granite State’s real
injury was as a result of the application of the height
and size requirements of the freestanding sign
provision, a provision which it does not directly attack,
but to which the Court permits a facial overbreadth
challenge. |
n22 Section 1-107 of the Code provides separately for
the severability of any section of the development code,
as set forth supra. Additionally, this current sign
ordinance was part of the Land Development Code
passcd by Ordinance # 6348-99 on January 21, 1999,
which also contained a severability provision: “Section
Four. Should any part or provision of this ordinance be
declared by a court of competent jurisdiction to be
invalid, the same shall not affect the validity of the
ordinance as a whole, or any part thereof other than the
part declared to be invalid.” (App. to Dkt. 42, Tab 17).
n23 Because the Court finds that Granite State does not
have standing to challenge the lack of time limits in the
appeals process in Article 4, it does not reach Granite
State’s argument that the permitting portion of the
ordinance is not severable because it is “so inseparable
in substance” that the ordinance would not have been
passed without those permitting procedures. If it were
to reach such an argument, the Court would agree with
Granite State.
n24 This theory of categorizing an ordinance that
provides for, in-some cases, legally required exceptions,
and in other cases, justifiable exceptions, as content-
based first began with the Supreme Court’s decision in
Linmark Assoc., Inc. v. Township of Willingboro, 431
Tla
U.S. 85, 52 L. Ed. 2d 155, 97 S. Ct. 1614 (1977), which
held that the city’s interest in maintaining stable and
racially integrated neighborhoods was not sufficient to
support a ban on residential “for sale” signs. Id. at 93.
n25 In fact. the other dissenting opinions in Metromedia
recognize San Diego’s ordinance as viewpoint neutral
such that the exceptions are rendered content neutral.
Metromedia, 453 U.S. at 541-42, 554 (Stevens, J.,
dissenting in part); Metromedia, 453 U.S.
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