Covenant Media of South Carolina, LLC v. Town of Surfside Beach , 321 F. App'x 251 ( 2009 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-2083
COVENANT MEDIA OF SOUTH CAROLINA, LLC,
Plaintiff - Appellant,
v.
TOWN OF SURFSIDE BEACH,
Defendant - Appellee.
Appeal from the United States District Court for the District of
South Carolina, at Florence. Terry L. Wooten, District Judge.
(4:05-cv-02029-TLW)
Argued: January 27, 2009 Decided: April 2, 2009
Before NIEMEYER, TRAXLER, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Edward Adam Webb, WEBB LAW GROUP, L.L.C., Atlanta, Georgia, for
Appellant. Andrew Lindemann, DAVIDSON & LINDEMANN, P.A.,
Columbia, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Covenant Media, Inc., appeals from the district court’s
rejection of its action challenging the constitutionality of the
Town of Surfside Beach’s sign ordinance. Finding no error that
warrants reversal, we affirm the district court’s order granting
summary judgment in favor of the Town.
I.
Prior to October 2006, 1 the Town had in force an ordinance
that required the issuance of permits before most on- or off-
premises signs could be constructed. Broadly speaking, the
ordinance treated all off-premises signs as billboards.
Billboards could be placed only on vacant lots within a
designated area (in a “C-1 highway commercial” zoning district).
There could be only one billboard per vacant lot, and no more
than 12 billboards could be located within the Town limits. The
ordinance also established various size and set-back
restrictions.
According to the allegations of its complaint, Covenant
submitted a complete sign application package to the Town on
1
The Town enacted a new sign ordinance that became
effective on October 24, 2006. No issue regarding the new
ordinance is before this court.
2
December 2, 2004, but the Town never responded to the
application. Although the Town contends that it never actually
received the 2004 application, we will assume, in light of the
procedural posture of this case, that Covenant did in fact file
the permit application with the Town and that the Town failed to
act on the application.
Covenant did not contact the Town to check on the status of
its application, but instead commenced this action in July 2005.
Covenant claimed that the ordinance was unconstitutional because
it impermissibly favored commercial speech over noncommercial
speech, did not provide a time limit for acting on permit
applications, and did not set forth its purpose, as required by
the Supreme Court in Central Hudson Gas & Electric Corp. v.
Public Service Commission, 447 U.S. 557 (1980).
In October 2005 (after the filing of its complaint),
Covenant submitted nine more applications for billboards. The
2005 sign applications did not comply with the requirements of
the sign ordinance – for example, the proposed signs would have
violated the setback requirements, would have been located on
lots that already contained a permitted sign, and would have
exceeded the limit of 12 billboards inside Town limits. The
Town therefore denied all of the 2005 applications. During the
course of this litigation, Covenant provided the Town with a
copy of the 2004 application. The Town submitted an affidavit
3
stating that it would have denied the 2004 application for
largely the same reasons that it denied the 2005 applications.
The district court granted summary judgment in favor of the
Town, concluding that the 2004 sign application would have been
denied because it did not comply with constitutionally
unobjectionable portions of the ordinance and that Covenant thus
lacked standing to challenge the handling of the 2004
application. 2 This appeal followed.
II.
On appeal, Covenant first contends that the district court
erred by concluding that it lacked standing. We agree.
The jurisdiction of federal courts extends only to actual
cases and controversies. See U.S. Const., art. III, § 2, cl. 1.
“A justiciable case or controversy requires a plaintiff who has
alleged such a personal stake in the outcome of the controversy
as to warrant his invocation of federal court jurisdiction and
to justify exercise of the court’s remedial powers on his
behalf.” White Tail Park, Inc. v. Stroube, 413 F.3d 451, 458
(4th Cir. 2005) (internal quotation marks omitted). A plaintiff
2
Covenant did not amend its complaint to include claims
challenging the denial of the 2005 applications, and the
district court’s order considered Covenant’s claims with regard
to the 2004 application only. We likewise limit our analysis to
the 2004 application.
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has standing – that is, a sufficient personal stake in the
controversy – if the plaintiff can show an “injury in fact,” a
“causal connection between the injury and the conduct complained
of,” and “a likelihood that the injury will be redressed by a
favorable decision.” Covenant Media of South Carolina, LLC v.
City of North Charleston, 493 F.3d 421, 428 (4th Cir. 2007)
(internal quotation marks omitted).
Our decision in Covenant Media controls the standing
question. As in Covenant Media, Covenant here was injured by a
delay in the processing of its permit application, an injury
that Covenant contends was caused by a constitutional defect in
the Town’s ordinance. If we were to accept Covenant’s argument
in that regard, the injury would at least be redressable by an
award of nominal damages. Covenant therefore has standing to
pursue its claim. See id. at 428-29.
III.
Although the district court erred in determining that
Covenant lacked standing, we nonetheless conclude that
Covenant’s claims fail on the merits and that the district
court therefore properly granted summary judgment to the Town.
See Blum v. Bacon, 457 U.S. 132, 137 n.5 (1982) (“It is well
accepted . . . that without filing a cross-appeal or cross-
petition, an appellee may rely upon any matter appearing in the
5
record in support of the judgment below.”); Covenant Media, 493
F.3d at 430-31.
A.
As to Covenant’s facial challenges to the ordinance, see
id. at 431 (considering both facial and as-applied challenges
after determining that Covenant had standing), Covenant first
argues that the ordinance violates the First Amendment because
the ordinance itself does not include a clause setting forth the
purposes the ordinance was intended to serve. See Central
Hudson, 447 U.S. at 564 (holding that a restriction on
commercial speech must directly advance a substantial
governmental interest). This court, however, has never required
that a challenged ordinance include an explicit declaration of
the underlying governmental purposes, nor do we believe that
such a requirement is implicit in the Central Hudson standard.
Cf. Bolger v. Youngs Drug Prods. Corp., 463 U.S. 60, 70-71
(1983) (“The Appellants do not purport to rely on justifications
for the statute offered during the 19th Century. Instead, they
advance interests that concededly were not asserted when the
prohibition was enacted into law. This reliance is permissible
since the insufficiency of the original motivation does not
diminish other interests that the restriction may now serve.”
(footnotes omitted)). The absence of an explicit statement of
purpose in the billboard ordinance therefore does not render the
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ordinance invalid under Central Hudson. Moreover, the purposes
asserted by the Town – promoting traffic safety and aesthetics –
are substantial governmental interests that are directly
advanced by the ordinance. See Georgia Outdoor Advertising,
Inc. v. City of Waynesville, 833 F.2d 43, 46 (4th Cir. 1987)
(“It requires neither elaboration nor citation to say that an
ordinance regulating billboards is likely to advance the
objective of enhancing the beauty of a city, and that no less
intrusive method would adequately protect the city’s
interest.”).
Covenant also contends that the ordinance is
unconstitutional because it does not require the Town to act on
a permit application within a specified time. See Freedman v.
Maryland, 380 U.S. 51, 58-59 (1965). In Covenant Media, we
found North Charleston’s ordinance to be content-neutral and
thus not subject to the Freedman procedural-safeguard
requirements. See Covenant Media, 493 F.3d at 435. The
ordinance at issue here is in all relevant respects functionally
identical to the ordinance in Covenant Media, and we likewise
conclude that the ordinance is content-neutral and thus need not
include the decision-making timeframe required by Freedman.
Accordingly, we reject Covenant’s facial challenges to the
ordinance.
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B.
Finally, we consider Covenant’s as-applied challenge, which
is based on the Town’s delay in processing the December 2004
permit application. Although we have concluded that the
ordinance was not required to contain the procedural safeguards
set out in Freedman, “a decisionmaker cannot use the absence of
such requirements to stifle free expression.” Covenant Media,
493 F.3d at 435. Accordingly, we must determine whether the
Town “applied the absence of time limitations in [the ordinance]
in such a manner to stifle Covenant’s First Amendment rights.”
Id.As we explained in Covenant Media, Covenant must show
conduct beyond mere negligence in order to establish a violation
of its First Amendment rights. See id. at 436. Despite being
on notice that the Town was seeking summary judgment on the
merits of its claims and having an opportunity to engage in
discovery, Covenant has presented no evidence that the Town’s
actions were anything beyond negligence. “Thus, because
negligent conduct is not enough to support a First Amendment
claim against government officials, the absence of anything but
negligence proves fatal to Covenant’s as-applied challenge.”
Id. at 437.
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IV.
Although we disagree with the district court’s conclusion
that Covenant lacked standing to assert its challenges to the
ordinance, we nonetheless conclude that Covenant’s challenges
fail on the merits. Accordingly, we hereby affirm the district
court’s grant of summary judgment in favor of the Town.
AFFIRMED
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