Tinsley Media, LLC v. Pickens County, GA , 203 F. App'x 268 ( 2006 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 05-12324 OCTOBER 12, 2006
Non-Argument Calendar THOMAS K. KAHN
CLERK
________________________
D. C. Docket No. 03-00131-CV-WCO-2
TINSLEY MEDIA, LLC,
Plaintiff-Appellant,
versus
PICKENS COUNTY, GA,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(October 12, 2006)
Before ANDERSON, BIRCH and PRYOR, Circuit Judges.
PER CURIAM:
Tinsley Media, LLC, appeals the order of the district court that in part
dismissed and in part granted summary judgment against the claims of Tinsley
Media, which challenged the sign ordinance of Pickens County, Georgia, enacted
in 1999. In March 2006, while this appeal was pending, the County repealed its
1999 Ordinance and enacted a new sign ordinance that largely addressed the
complaints of Tinsley Media. After the parties filed their initial briefs, we
requested supplemental briefs that addressed the intervening decision of our Court
in Tanner Advertising Group, L.L.C. v. Fayette County, 451 F.3d 777 (11th Cir.
2006) (en banc), and CAMP Legal Defense Fund, Inc. v. City of Atlanta, 451 F.3d
1257 (11th Cir. 2006).
Tinsley Media argues that (1) it has standing to challenge the prohibition on
billboards, the exceptions to the permitting requirements, and the alleged lack of
procedural safeguards of the 1999 Ordinance; (2) its claims are not moot because it
preserved its request for damages; and (3) the district court erroneously granted
summary judgment against these claims. We conclude that Tinsley Media has
standing to challenge the prohibition on billboards, the claim is not rendered moot
by the 2006 Ordinance, and the district court erroneously granted summary
judgment against the challenges of Tinsley Media to this provision under the U.S.
and Georgia Constitutions. We also conclude that Tinsley Media lacks standing to
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challenge the exceptions to the permitting requirement. We conclude that the
challenge of Tinsley Media to the lack of procedural safeguards under the 1999
Ordinance is rendered moot by the adoption of the 2006 Ordinance. We affirm in
part and reverse and remand in part.
I. BACKGROUND
Tinsley Media is a Georgia corporation in the business of buying and leasing
space to post billboards that display both commercial and noncommercial
messages. In 1999, Pickens County enacted an ordinance to regulate the posting of
signs. See Pickens County, Ga., Code §§ 4-31 to 4-49 (1999) [hereinafter “1999
Ordinance”]. The 1999 Ordinance prohibited billboards entirely. Id. § 4-32(4).
The 1999 Ordinance defined a billboard as “an advertising sign or a sign which
advertises a commodity, product, service, activity or other person, place or thing,
which is not located, found or sold on the premises upon which the sign is
located[.]” Id. § 4-31.
The 1999 Ordinance required a permit for signs, id. § 4-49, and the
ordinance imposed a variety of size, lighting, and maintenance restrictions on all
signs. See id. §§ 4-33 to 4-46. The 1999 Ordinance exempted certain signs from
the permit requirement and restrictions. Id. § 4-47. Section 4-47 of the 1999
Ordinance exempted for-sale signs, id. § 4-47(1); official notices, id. § 4-47(2);
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directional signs, id. § 4-47(3); transportation-related safety notices, id. § 4-47(4);
historical markers, id. § 4-47(5); signs warning against hunting, fishing, or
trespassing, id. § 4-47(6); Red Cross emergency signs, id. § 4-47(7); highway
markers, id. § 4-47(8); business name plates, id. § 4-47(9); signs announcing
garage and carport sales, id. § 4-47(10); and campaign signs located on private
property, id. § 4-47(11).
The 1999 Ordinance directed that permit applications be submitted to the
county commissioner and provided a “Sign Application” form. See id. § 4-49.
The 1999 Ordinance did not specify the criteria for approval, impose a time limit
for review of a permit application, or establish a procedure to appeal the denial of a
permit application. See generally id. § 4-31 to 4-49. The 1999 Ordinance did not
contain a statement of purpose or findings. See generally id.
In March and June 2003, Tinsley Media submitted to Pickens County eleven
applications that requested permits to post billboards. The county denied all eleven
applications because billboards were prohibited under the 1999 ordinance. The
1999 ordinance did not provide an appeals process.
Tinsley Media filed this action in federal court. Tinsley Media alleged that
the exemptions contained in section 4-47, the prohibition on billboards, and the
alleged lack of procedural safeguards violated the First and Fourteenth
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Amendments of the U.S. Constitution and the Georgia Constitution. The district
court determined that Tinsley Media had standing to challenge only the prohibition
on billboards because that was the provision under which the County denied the
permit applications of Tinsley Media. The district court concluded that the
prohibition on billboards did not violate the U.S. Constitution because the
prohibition was content-neutral, did not favor commercial speech over non-
commercial speech, imposed a reasonable time, place, and manner restriction, and
satisfied the test for the regulation of commercial speech under Central Hudson
Gas & Electric Corp. v. Public Service Commission, 447 U.S. 557, 100 S. Ct. 2343(1980). The district court also concluded that the prohibition was permissible
under the Georgia Constitution.
Tinsley Media appealed. In March 2006, while this appeal was pending, the
County repealed the 1999 Ordinance and adopted a new sign ordinance. See
Pickens County, Ga., Code §§ 4-31 to 4-42 (2006) [hereinafter “2006 Ordinance”].
The 2006 Ordinance contains statements of purpose and findings, id. §§ 4-31, 4-
32, and establishes a permitting procedure that includes standards for approval, id.
§ 4-39(b), (e)(7), a 10-day time limit, id. § 4-39(e)(3), and an appeal process, id. §
4-39(l). Also while this appeal was pending, this Court decided two cases that
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addressed the issues of standing and mootness in the context of First Amendment
challenges. See CAMP, 451 F.3d 1257; Tanner, 451 F.3d 777.
II. STANDARD OF REVIEW
This Court reviews de novo the grant of summary judgment. Nat’l Fire Ins.
Co. v. Fortune Constr. Co., 320 F.3d 1260, 1267 (11th Cir. 2003). “We review
standing determinations de novo.” Bochese v. Town of Ponce Inlet, 405 F.3d 964,
975 (11th Cir.), cert. denied, ___ U.S. ___, 126 S. Ct. 377 (2005). “We review the
question of mootness de novo.” Coral Springs St. Sys., Inc. v. City of Sunrise, 371
F.3d 1320, 1328 (11th Cir. 2004).
III. DISCUSSION
Tinsley Media argues that several provisions of the 1999 Ordinance are
unconstitutional under the U.S. and Georgia Constitutions. These claims fall into
three categories. First, Tinsley Media challenges the constitutionality of the
prohibition on billboards. Second, Tinsley Media argues that the exceptions
contained in section 4-47 are unconstitutional. Third, Tinsley Media argues that
the 1999 Ordinance lacks several procedural safeguards. We address each
category in turn, and, for each, begin with the threshold issues of standing and
mootness.
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A. The Prohibition on Billboards Is Unconstitutional.
Tinsley Media argues that the prohibition on billboards violates the U.S. and
Georgia Constitutions because it is content-based and favors commercial speech
over non-commercial speech. First, we consider whether Tinsley Media has
standing and find that it does. Second, we determine that the argument of Tinsley
Media was not rendered moot by the repeal of the 1999 Ordinance and the
enactment of the 2006 Ordinance. Third, we address the merits of the argument of
Tinsley Media.
1. Tinsley Media Has Standing.
“Standing ‘is the threshold question in every federal case, determining the
power of the court to entertain the suit.’” CAMP, 451 F.3d at 1257 (quoting Warth
v. Seldin, 422 U.S. 490, 499, 95 S. Ct. 2197, 2205 (1975)). Standing has three
requirements: “(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.” Granite State Outdoor Adver., Inc. v. City of Clearwater, 351
F.3d 1112, 1116 (11th Cir. 2003).
Tinsley Media has satisfied the three standing requirements. See id., 351
F.3d at 1116. Tinsley Media has shown “injury in fact” because it was denied a
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permit to erect the billboards. This injury is causally related to the alleged
constitutional violation because the permit application was denied under the
provision that prohibits billboards. A favorable decision—invalidation of the
provision—would mean Tinsley Media should have received approval of its
application and may be entitled to damages. We conclude that Tinsley Media has
standing to challenge the prohibition on billboards.
2. The Issue Is Not Moot.
“Article III of the Constitution requires that there be a live case or
controversy at the time that a federal court decides the case.” Burke v. Barnes, 479
U.S. 361, 363, 107 S. Ct. 734, 736 (1987). “The requisite personal interest that
must exist at the commencement of the litigation (standing) must continue
throughout its existence (mootness).” U.S. Parole Comm’n v. Geraghty, 445 U.S.
388, 397, 100 S. Ct. 1202, 1209 (1980) (internal quotations omitted). “Ordinarily,
‘a challenge to the constitutionality of a statute is mooted by repeal of the statute.’”
Tanner, 451 F.3d at 785 (quoting Coral Springs, 371 F.3d at 1329).
Although the 2006 Ordinance does not prohibit billboards, the repeal of the
1999 Ordinance and the enactment of the 2006 Ordinance does not render the
challenge of Tinsley Media to the prohibition on billboards moot. “[W]hen a
plaintiff requests damages, as opposed to only declaratory or injunctive relief,
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changes to or repeal of the challenged ordinance may not necessarily moot the
plaintiff’s constitutional challenge to that ordinance.” Crown Media, LLC v.
Gwinnett County, 380 F.3d 1317, 1325 (11th Cir. 2004). Tinsley Media preserved
an argument that it is entitled to damages because it challenged the provision of the
1999 Ordinance under which its permit application was denied at all stages in the
litigation. Cf. Tanner, 451 F.3d at 785-86 (finding that the issue was moot because
Tanner failed to preserve an argument that would have entitled it to damages). We
conclude that the challenge of Tinsley Media to the prohibition on billboards is not
moot.
3. The Prohibition on Billboards Is Unconstitutional
Because It Was Not Enacted to Implement a Substantial
Governmental Purpose.
Because we conclude that Tinsley Media has standing to challenge the
prohibition on billboards and the issue is not moot, this Court has jurisdiction to
address the merits of the argument. See Geraghty, 445 U.S. at 397, 100 S. Ct. at
1209. Tinsley Media argues that the challenged provision violates the U.S.
Constitution because the 1999 Ordinance was not enacted to advance a substantial
governmental interest. Tinsley Media argues that the 1999 Ordinance likewise
violates the Georgia Constitution.
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Regulations that restrict the expression of protected commercial speech are
analyzed under a four-part analysis. See Cent. Hudson, 447 U.S. at 566, 100 S. Ct.
at 2351. The first step states that commercial speech is protected “only if that
speech concerns lawful activity and is not misleading.” Metromedia, Inc. v. City
of San Diego, 453 U.S. 490, 507, 101 S. Ct. 2882, 2892 (1981). “A restriction on
otherwise protected commercial speech is valid only if it (2) seeks to implement a
substantial governmental interest, (3) directly advances that interest, and (4)
reaches no further than necessary to accomplish the given objective.” Id. “[T]he
party seeking to uphold a restriction on commercial speech carries the burden of
justifying it.” Thompson v. W. States Med. Ctr., 535 U.S. 357, 373, 122 S. Ct.
1497, 1507 (2002) (internal quotation omitted).
Tinsley Media argues that the County failed to establish that the ordinance
was enacted “to implement a substantial governmental interest.” Metromedia, 453
U.S. at 507, 101 S. Ct. at 2892. The County acknowledges that the 1999
Ordinance contains no stated purpose or findings to support the restrictions, but
argues that the affidavit of the county commissioner —one submitted during
litigation, five years after the enactment of the ordinance—is sufficient to establish
the purpose of the ordinance. The affidavit states, “As Commissioner, I adopted a
sign ordinance for the County in 1999 in order to promote uniformity, preserve
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aesthetic qualities in the County and foster the safety of motorists and pedestrians
in the County.” Tinsley Media argues that the affidavit is inadmissible and, in the
alternative, insufficient to overcome the failure of the ordinance to state its
purpose.
First, we address the admissibility of the affidavit. The County cites no case
in which this Court has upheld the admission of an affidavit of a legislator as
evidence of legislative intent. Our own review of the case law reveals that the vast
majority of courts reject the use of post hoc testimony as a means of determining
legislative intent. See, e.g., Covalt v. Carey Canada Inc., 860 F.2d 1434, 1438-39
(7th Cir. 1988) (“Legislative history generated in the course of litigation . . . may
be designed to mislead, to put an advocate’s slant on things.”). The U.S. Supreme
Court has likewise rejected the practice: “post hoc observations by a single
member of Congress carry little if any weight.” Bread Political Action Comm. v.
Fed. Election Comm’n, 455 U.S. 577, 582 n.3, 102 S. Ct. 1235, 1239 (1982)
(quoting Quern v. Mandley, 436 U.S. 725, 736 n.10, 98 S. Ct. 2068, 2075 (1978)).
Second, even if the affidavit were admissible, it is insufficient under our
precedents to satisfy the burden of the County to prove a substantial governmental
interest. See Dills v. City of Marietta, 674 F.2d 1377, 1381 (11th Cir. 1982). In
Dills, the city stated its purpose in regulating the use of portable signs was “to
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safeguard life, public health, property and welfare.” Id. We held, “When
all-inclusive statements of purpose are used we are forced to look in the record for
evidence of the interest underlying a measure.” Id. The Dills Court expressed
concern for “after the fact rationalizations for regulations thereby allowing
circumvention of the mandate that such measures be defended only on the basis of
considerations actually contributing to their enactment.” Id.The 1999 Ordinance contains no “all-inclusive statement[] of purpose,” and
we decline to extend the inquiry into the record permitted under Dills to ordinances
that contain no statement of purpose at all. Without a statement of purpose in the
ordinance, the statute cannot satisfy the “substantial governmental interest”
requirement of Central Hudson. Metromedia, 453 U.S. at 507, 101 S. Ct. at 2892;
see also Desert Outdoor Adver., Inc. v. City of Moreno Valley, 103 F.3d 814, 819
(9th Cir. 1996). The district court erroneously granted summary judgment in favor
of the County on this claim.
The district court also erred when it granted summary judgment against the
challenge of Tinsley Media to the prohibition of billboards under the Georgia
Constitution. The Georgia Supreme Court has held, “Our state constitution
provides even broader protection of speech than the first amendment.” Statesboro
Publ’g Co. v. City of Sylvania, 516 S.E.2d 296, 299 (Ga. 1999). Because the
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County failed to prove a substantial governmental interest, the 1999 Ordinance
also violates the Georgia Constitution.
B. Tinsley Media Lacks Standing to Challenge the
Section 4-47 Exceptions.
The County argues that the challenge of Tinsley Media to the section 4-47
exemptions was rendered moot when the 1999 Ordinance was repealed and the
2006 Ordinance was enacted. Although the 1999 Ordinance was repealed in its
entirety, a comparison with the 2006 Ordinance reveals that at least some
exceptions to the permitting process were re-enacted. E.g., compare 1999
Ordinance § 4-47(2) (exempting official notices) with 2006 Ordinance § 4-37(b)
(granting a “general permit” to official notices). To avoid a provision-by-provision
analysis for mootness, we exercise our discretion to review the issue of standing
first. See Arizonans for Official English v. Arizona, 520 U.S. 43, 66-67, 117 S. Ct.
1055, 1068 (1997).
Tinsley Media argues that it has standing to challenge the permitting
exceptions of section 4-47 under CAMP, but we disagree. In CAMP, the festival
ordinance of the City of Atlanta granted an exemption from permitting for “city-
sponsored events,” 451 F.3d at 1275, and CAMP challenged that provision as
granting to city officials unbridled discretion. The provision did not “provide
guidance about which events will be awarded city approval and exemption from
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the licensing scheme.” Id. CAMP argued that the exemption was unconstitutional
because it would allow “post hoc rationalizations by the licensing official and the
use of shifting or illegitimate criteria.” Id. (quoting City of Lakewood v. Plain
Dealer Publ’g Co., 486 U.S. 750, 758, 108 S. Ct. 2138, 2144 (1988). We
concluded that CAMP had standing to challenge this provision because “CAMP
must either comply with the permitting scheme or face prosecution, while
government-sponsored festival promoters need not comply at all.” Id. After the
exemption on government-sponsored events was declared unconstitutional, CAMP
was no longer subject to a process that granted city officials unbridled discretion.
In contrast with CAMP, Tinsley Media does not argue that the exemptions in
the 1999 Ordinance granted unbridled discretion to county officials; instead,
Tinsley Media argues that the exemptions were content-based prior restraints on
speech. The injury, in this circumstance, is the prohibition of the intended form of
expression of Tinsley Media, i.e., the erection of advertising billboards. Tinsley
Media fails to satisfy the “redressability” requirement of standing because, even if
we declared unconstitutional one or more of the exemptions, the striking of those
exemptions would not in any way benefit the proposed forms of expression of
Tinsley Media. See Granite State, 351 F.3d at 1116. The permitting requirements
for billboards would remain.
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C. The Challenge of Tinsley Media to the Lack of
Procedural Safeguards Is Moot.
Tinsley Media argues that the lack of procedural safeguards in the 1999
Ordinance is unconstitutional. Tinsley Media argues that the 1999 Ordinance vests
unbridled discretion in the county commissioner because it fails to specify the
criteria for approval, to impose a time limit for review of a permit application, or to
establish a procedure to appeal the denial of a permit application. See generally id.§ 4-31–4-49. In its supplemental brief, the County argued these challenges became
moot upon the enactment of the 2006 Ordinance. Tinsley Media did not address
this argument in its reply brief.
We agree with the County. The procedural safeguard challenges of Tinsley
Media are moot. The 2006 Ordinance remedies each of the violations that Tinsley
Media alleged. See 2006 Ordinance §§ 4-39(b), (e)(7) (standards for approval), 4-
39(e)(3) (10-day time limit), 4-39(e)(l) (procedure for appeal). Unlike the
challenge of Tinsley Media to the provision under which it was denied, these facial
challenges “correspond to its requests for injunctive relief” and are not preserved
under the request of Tinsley Media for damages. Tanner, 451 F.3d at 787.
IV. CONCLUSION
We affirm the dismissal of the challenges of Tinsley Media to the exceptions
contained in section 4-47 and the lack of procedural safeguards in the 1999
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Ordinance. We reverse the summary judgment entered against the challenge of
Tinsley Media to the prohibition on billboards under the U.S. and Georgia
Constitutions.
AFFIRMED in part, REVERSED and REMANDED in part.
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