Outdoor Media Group v. City of Beaumont ( 2007 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
OUTDOOR MEDIA GROUP, INC., a 
California Corporation,
No. 05-56620
Plaintiff-Appellant,
v.  D.C. No.
CV-03-01461-RT
CITY OF BEAUMONT, a California
OPINION
Charter City,
Defendant-Appellee.

Appeal from the United States District Court
for the Central District of California
Robert J. Timlin, Senior Judge, Presiding
Argued and Submitted
June 6, 2007—Pasadena, California
Filed November 1, 2007
Before: Cynthia Holcomb Hall and Consuelo M. Callahan,
Circuit Judges, and Lyle E. Strom,* District Judge.
Opinion by Judge Hall;
Partial Concurrence and Partial Dissent by Judge Callahan
*The Honorable Lyle E. Strom, Senior United States District Judge for
the District of Nebraska, sitting by designation.
14395
OUTDOOR MEDIA GROUP v. CITY OF BEAUMONT 14399
COUNSEL
Jeffrey A. Tidus and Henry H. Gonzalez, Baute & Tidus, Los
Angeles, California, for the appellant.
Randal R. Morrison, Sabine and Morrison, San Diego, Cali-
fornia, for the appellee.
OPINION
HALL, Senior Circuit Judge:
Outdoor Media Group appeals the district court’s dismissal
of its 42 U.S.C. § 1983 complaint under Federal Rule of Civil
Procedure 12(b)(6). Outdoor Media asserts that the City of
Beaumont’s billboard ordinance violates the First and Four-
teenth Amendments. Beaumont repealed the challenged ordi-
nance and replaced it with a new ordinance that specifically
bans new billboard construction. The district court then dis-
missed Outdoor Media’s claims for injunctive and declarative
relief as moot, and dismissed its damages claim on the merits.
The district court had jurisdiction under 28 U.S.C. § 1331.
This court has jurisdiction over the appeal under 28 U.S.C.
§ 1291. We reverse in part and remand for consideration of
whether the old ordinance created an unconstitutional prefer-
ence for commercial over noncommercial speech or imper-
14400 OUTDOOR MEDIA GROUP v. CITY OF BEAUMONT
missibly distinguished among categories of noncommercial
speech, and whether this alleged infirmity gives rise to Out-
door Media’s damages claim.
I. Background
On May 22, 2003, Outdoor Media filed a conditional use
permit application with the Planning Commission of the city
of Beaumont to erect four billboards at the junction of Inter-
state 10 and State Route 60. On July 8, the City’s Director of
Planning recommended that the Planning Commission deny
the application, because the signs “would result in excessive,
undue and adverse visual intrusion in the character of the sub-
ject Interstate 10 and State Highway 60 commercial corridors,
by adding unrelated advertising to a future new commercial
facility.” It also found the proposed billboards would “have a
detrimental effect on the general public, health, safety and
welfare by adversely affecting existing views of open space
and visual relief and future views of new commercial devel-
opment.” The Planning Commission accepted this recommen-
dation and rejected Outdoor Media’s permit application.
Outdoor Media appealed to the City Council, which affirmed
the denial.
Outdoor Media filed this suit on December 12, 2003, alleg-
ing that the city deprived it of its First and Fourteenth Amend-
ment rights. Specifically, Outdoor Media alleges that (1) the
ordinance violates the First Amendment because it regulates
signs on the basis of content, regulates commercial speech
without a substantial government interest, allows the city
standardless discretion in the permitting process, and is over-
broad; (2) the city violated Outdoor Media’s procedural due
process rights because its denial was unreasonable, arbitrary,
and capricious; and (3) the ordinance violates the Equal Pro-
tection Clause by regulating on the basis of arbitrary and
unreasonable classifications. Outdoor Media sought damages
for deprivation of its constitutional rights, a declaration that
the sign ordinance is unconstitutional on its face and as
OUTDOOR MEDIA GROUP v. CITY OF BEAUMONT 14401
applied to Outdoor Media, and injunctive relief prohibiting
the city from interfering with Outdoor Media’s efforts to erect
otherwise-conforming signs within the city.
On February 3, 2004, the City Council repealed the chal-
lenged sign ordinance and replaced it with a new ordinance
that specifically bans new billboards. The city sought judicial
notice of the old and new sign ordinances, and filed a motion
to dismiss the complaint. Outdoor Media opposed the motion
to dismiss and sought judicial notice of the Director of Plan-
ning’s recommendation to reject the company’s permits. On
June 30, 2005, the district court granted both motions for judi-
cial notice and the motion to dismiss. Outdoor Media timely
appealed.
II. Standard of Review
We review de novo the district court’s grant of a motion to
dismiss under Federal Rule of Civil Procedure 12(b)(6). Knie-
vel v. ESPN, 393 F.3d 1068, 1072 (9th Cir. 2005). When rul-
ing on a motion to dismiss, we may “generally consider only
allegations contained in the pleadings, exhibits attached to the
complaint, and matters properly subject to judicial notice.”
Swartz v. KPMG LLP, 476 F.3d 756, 763 (9th Cir. 2007). We
accept all factual allegations in the complaint as true and con-
strue the pleadings in the light most favorable to the nonmov-
ing party. Knievel, 393 F.3d at 1072.
III. Analysis
A. Jurisdiction
Before we examine the merits of Outdoor Media’s appeal,
we must address Beaumont’s claim, raised for the first time
at oral argument, that we lack jurisdiction to consider this
case because Outdoor Media has failed to exhaust its state law
remedies. Generally, the federal courts deem waived any
arguments that are not raised and presented in the parties’
14402 OUTDOOR MEDIA GROUP v. CITY OF BEAUMONT
opening briefs. See, e.g., Holland America Line Inc. v. Wart-
sila North America, Inc., 485 F.3d 450, 459 n.6 (9th Cir.
2007). By failing to present the issue properly, Beaumont has
deprived its opponent of a fair opportunity to respond com-
prehensively to its claim, and has deprived this court of the
benefit of a robust debate informed by zealous advocacy.
However, the waiver rule does not apply when the issue goes
to the district court’s jurisdiction. See Conforte v. United
States, 979 F.2d 1375, 1377 (9th Cir. 1992). Therefore, we
address Beaumont’s belated argument.
[1] Beaumont’s jurisdictional argument flows from two
premises: (1) a plaintiff must exhaust its state law remedies
before pursuing a federal claim, and (2) a writ of administra-
tive mandamus is the exclusive state law remedy for an alleg-
edly improperly denied conditional use permit. We need not
address the second premise because the first is fatally flawed.
The Supreme Court has explained that “exhaustion of state
administrative remedies is not a prerequisite to an action
under § 1983.” Patsy v. Bd. of Regents, 457 U.S. 496, 507
(1982); see also Knight v. Kenai Peninsula Borough Sch.
Dist., 131 F.3d 807, 816 (9th Cir. 1997) (“Congress imposed
only a limited exhaustion requirement on actions brought
under 42 U.S.C. § 1983, as this case was. The statute requires
exhaustion only when brought by prisoners. Thus, mandating
exhaustion in this case would not be consistent with congres-
sional intent.”). Beaumont’s reliance upon our Fifth Amend-
ment regulatory takings cases is misplaced. We require
exhaustion of administrative remedies in the takings context
as a matter of ripeness: Because the Takings Clause only pro-
hibits the taking of property without just compensation, a tak-
ings claim is not ripe until the claimant has pursued and been
denied just compensation under the applicable state compen-
satory procedures. Here, the alleged deprivation of Outdoor
Media’s constitutional rights was completed when Beaumont
denied its permit applications. Because exhaustion is not
required to pursue a Section 1983 complaint, we find that
Outdoor Media’s failure to seek a writ of administrative man-
OUTDOOR MEDIA GROUP v. CITY OF BEAUMONT 14403
damus did not deprive the district court of jurisdiction over
this case.
B. Mootness of Claims for Declaratory and Injunctive Relief
[2] Outdoor Media asserts that the district court erred in
finding that the repeal of the ordinance mooted its requests for
a declaration that the ordinance is unconstitutional and for an
injunction prohibiting its enforcement. “A claim is moot when
the issues presented are no longer live or the parties lack a
legally cognizable interest in the outcome. The basic question
is whether there exists a present controversy as to which
effective relief can be granted.” Vill. of Gambell v. Babbitt,
999 F.2d 403, 406 (9th Cir. 1993) (internal quotation marks
and citations omitted). “Generally, a case should not be con-
sidered moot if the defendant voluntarily ceases the allegedly
improper behavior in response to a suit, but is free to return
to it at any time.” Native Vill. of Noatak v. Blatchford, 38 F.3d
1505, 1510 (9th Cir. 1994). “A statutory change, however, is
usually enough to render a case moot, even if the legislature
possesses the power to reenact the statute after the lawsuit is
dismissed.” Id.1
[3] Here, the district court correctly determined that the
city’s repeal of the sign ordinance moots Outdoor Media’s
claims for declaratory and injunctive relief. Because there is
no longer any risk that Outdoor Media will be subject to the
challenged ordinance, there exists no live issue upon which
the court could issue prospective relief. Noatak, 38 F.3d at
1510. Outdoor Media attempts to distinguish Noatak on the
ground that Beaumont repealed the statute only after Outdoor
Media filed suit, suggesting that the repeal is strategic and
that the city will re-enact the statute upon resolution of the
case. The company relies upon City of Mesquite v. Aladdin’s
Castle, 455 U.S. 283, 289 (1982), but as the district court rec-
1
See also id. (“As a general rule, if a challenged law is repealed or
expires, the case becomes moot.”).
14404 OUTDOOR MEDIA GROUP v. CITY OF BEAUMONT
ognized, Outdoor Media’s broad reading of that case does not
square with this circuit’s precedent. Noatak limited Mesquite
to the “rare” situation “where it is virtually certain that the
repealed law would be reenacted.” Noatak, 38 F.3d at 1510
(emphasis added); see also Cammermeyer v. Perry, 97 F.3d
1235, 1238 (9th Cir. 1996).2 The fact that the lawsuit may
have prompted the city’s action does not alone show the city’s
intent to later re-enact the challenged ordinance. Cf. Smith v.
University of Washington Law School, 233 F.3d 1188, 1194
(9th Cir. 2000) (defendant has given no indication of intention
to reinstate policy invalidated while case was pending and
“we will not assume that it will. We also will not assume bad
faith”).3 The new ordinance, forbidding all billboards, accom-
plishes the city’s stated goals of limiting visual clutter and
preserving commercial viability of future developments,
meaning the city has no motive to re-enact a constitutionally
suspect ordinance to accomplish the same objective.
[4] Outdoor Media also claims that its claim is not moot
because the new ordinance remains constitutionally infirm. In
Northeastern Florida Chapter of the Associated General Con-
tractors of America v. Jacksonville, 508 U.S. 656 (1993), the
Supreme Court explained that amendments to a challenged
statute did not moot a case because the new ordinance “disad-
vantaged [plaintiffs] in the same fundamental way” as the
challenged statute. Id. at 662. We find Northeastern Florida
to be inapposite because the new ordinance cures the constitu-
2
See also Tanner Adver. Group, L.L.C. v. Fayette County, Ga., 451 F.3d
777, 785 (11th Cir. 2006) (“Ordinarily, a challenge to the constitutionality
of a statute is mooted by repeal of the statute.”) (citation omitted); Federa-
tion of Adver. Ind. Rep. v. City of Chicago, 326 F.3d 924, 929 (7th Cir.
2003) (same); cf. Qwest Corp. v. City of Surprise, 434 F.3d 1176, 1181
(9th Cir. 2006) (dismissing claim as moot where new ordinance grants
plaintiff relief and record does not indicate that city will repeal ordinance
upon conclusion of case).
3
We also note that it would be an odd incentive structure that punishes
a city for repealing an ordinance in response to a litigant’s suggestion that
said ordinance was illegal.
OUTDOOR MEDIA GROUP v. CITY OF BEAUMONT 14405
tional deficiencies that Outdoor Media alleged in connection
with the original sign ordinance. The crux of Outdoor Media’s
complaint is that the old ordinance (1) grants standardless dis-
cretion to planning commissioners, (2) regulates more com-
mercial speech than necessary to advance a substantial
governmental interest and (3) impermissibly burdens non-
commercial speech greater than commercial speech and
favors some non-commercial messages over others. The new
ordinance completely bans all new off-site commercial signs.
Because the planning commission need only determine
whether the proposed sign is an off-site commercial sign, the
new ordinance does not grant that body unbridled discretion.
See Outdoor Systems, Inc. v. City of Mesa, 997 F.2d 604, 613
(9th Cir. 1993). The new ordinance justifies its ban on off-site
commercial signs by citing the aesthetic harm imposed by
billboards. The Supreme Court and our prior case law have
endorsed this rationale as a substantial government interest,
and found that a complete ban on new billboards is no more
extensive than necessary to serve that interest under prior case
law. See Metromedia, 453 U.S. at 511-12; Ackerley
Commc’ns Inc. v. Krochalis, 108 F.3d 1095, 1097-1100 (9th
Cir. 1997). Finally, the new ordinance contains a message
substitution clause that permits the substitution of noncom-
mercial content for existing copy on any otherwise permissi-
ble sign. This clause cures any potentially impermissible
burdens on noncommercial speech caused by the off-site sign
ban. See Outdoor Sys., 997 F.2d at 611.4 Because the new
ordinance is not “sufficiently similar to the repealed ordinance
4
Outdoor Media also argues that the new ordinance is overly broad, but
the breadth of the new ordinance’s prohibition is not challenged in its
complaint and in any case, Outdoor Media does not explain how the ban
on new commercial billboards will “have any different impact on any third
parties’ interests in free speech than it has” on itself. Members of City
Council of City of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789,
801 (1984); see also Metromedia, Inc. v. City of San Diego, 453 U.S. 490,
508-09 (1981) (plurality opinion) (upholding identical ban against facial
challenge); Taxpayers for Vincent, 466 U.S. at 806-07 (endorsing
Metromedia’s holding).
14406 OUTDOOR MEDIA GROUP v. CITY OF BEAUMONT
that it is permissible to say that the challenged conduct contin-
ues,” Northeastern Florida, 508 U.S. at 662 n.3, Outdoor
Media’s claims for declaratory and injunctive relief are moot.5
C. Damages
As the district court correctly noted, the repeal of the ordi-
nance under which Outdoor Media’s permits were denied
does not moot its claim for damages. Buckhannon Bd. & Care
Home v. W. Va. Dep’t of Health & Human Res., 532 U.S. 598,
608-09 (2001); see also Bernhardt v. County of Los Angeles,
279 F.3d 862, 872 (9th Cir. 2002). A plaintiff seeks damages
for a past violation of its rights; this violation is not mooted
by a promise not to repeat the alleged conduct in the future.
The district court found that Outdoor Media was not entitled
to damages because it had no vested rights upon which the
city infringed. On appeal, Outdoor Media argues that vested
rights are not required to claim damages and that it had a
vested right based upon the city’s bad faith denial of its per-
mit application.
[5] The district court’s ruling was correct as to Outdoor
Media’s procedural due process claim. “The requirements of
procedural due process apply only to the deprivation of inter-
ests encompassed by the Fourteenth Amendment’s protection
of liberty and property.” Board of Regents v. Roth, 408 U.S.
564, 569 (1972). The parties agree that property interests giv-
ing rise to a due process claim, such as vested rights in a land
development permit, “are created and their dimensions are
defined by existing rules or understandings that stem from . . .
state law.” Id. at 577; see also Lakeview Dev. v. City of South
5
Outdoor Media also argues that the statute’s repeal does not moot its
claims because, unlike in Noatak and Federation of Advertising Industry
Executives v. City of Chicago, 326 F.3d 924 (7th Cir. 2003), the repeal
does not provide the company the “full relief” of allowing its billboards
to be built. Outdoor Media cites no law directly supporting this argument
and we find it unpersuasive.
OUTDOOR MEDIA GROUP v. CITY OF BEAUMONT 14407
Lake Tahoe, 915 F.2d 1290, 1294 (9th Cir. 1990). California
has recognized a protected property interest in billboard con-
struction only “[o]nce a permit has been issued.” Traverso v.
People ex rel. Dep’t of Transp., 6 Cal. 4th 1152, 1162 (1993);
see also West Coast Advertising Co. v. City and County of
San Francisco, 256 Cal. App. 2d 357, 359 (1967). Outdoor
Media argues that because the city allegedly wrongfully
denied it an opportunity to rely upon an issued permit, its
rights should be considered vested, relying upon the district
court opinion in Horizon Outdoor LLC v. City of Industry,
228 F. Supp. 2d 1113, 1121 (C.D. Cal. 2002). This case is
unpersuasive, as it relies entirely upon Eleventh Circuit cases
interpreting Florida law. Because this case is at odds with
California state court precedent, we decline to follow it here.
Therefore we find that the district court correctly determined
that Outdoor Media lacked a vested property right in its unap-
proved billboard permit application, and therefore its proce-
dural due process claim was properly dismissed.
[6] The district court erred, however, in dismissing Outdoor
Media’s First Amendment and Equal Protection claims on this
ground. The establishment of a vested property right is irrele-
vant to such a challenge. See Rutan v. Republican Party of
Ill., 497 U.S. 62, 72 (1990) (rejecting argument that employ-
ee’s First Amendment rights were not infringed by politically
motivated promotion decisions because employee had no
legal entitlement to promotion). Rutan reaffirmed that
even though a person has no ‘right’ to a valuable
governmental benefit and even though the govern-
ment may deny him the benefit for any number of
reasons, there are some reasons upon which the gov-
ernment may not rely. It may not deny a benefit to
a person on a basis that infringes his constitutionally
protected interests-especially, his interest in freedom
of speech. For if the government could deny a bene-
fit to a person because of his constitutionally pro-
tected speech or associations, his exercise of those
14408 OUTDOOR MEDIA GROUP v. CITY OF BEAUMONT
freedoms would in effect be penalized and inhibited.
This would allow the government to produce a result
which it could not command directly. Such interfer-
ence with constitutional rights is impermissible.
Id. (internal quotation marks and citations omitted). We there-
fore hold that the district court erred in dismissing Outdoor
Media’s First Amendment and Equal Protection claims solely
due to lack of a vested property right, and examine whether
any of these theories state a claim upon which relief may be
granted.
1. First Amendment: Unbridled Discretion
[7] The prior restraint doctrine requires that a licensing
regime “avoid placing unbridled discretion in the hands of
government officials.” GK Ltd. Travel v. City of Lake
Oswego, 436 F.3d 1064, 1082 (9th Cir. 2006). This require-
ment seeks to “alleviate the threat of content-based, discrimi-
natory enforcement that arises where the licensing official
enjoys unduly broad discretion in determining whether to
grant or deny a permit.” Id. (internal quotation marks omit-
ted). To avoid impermissible discretion, an ordinance must
“contain adequate standards to guide the official’s decision
and render it subject to judicial review.” Thomas v. Chicago
Park Dist., 534 U.S. 316, 323 (2002).
Under the old ordinance, a permit was required for any sign
that was not expressly exempted from the permit scheme. For-
mer City of Beaumont Municipal Code (hereafter “Old Ordi-
nance”) § 17.60.020(A).6 The Director of Planning was
required to rule upon any permit application within fifteen
days, and was specifically instructed that his review was to
“ensure that any sign proposal is in conformance with this
6
The Old Ordinance contained a list of exempted signs, none of which
are implicated by Outdoor Media’s permit applications. See Old Ordi-
nance § 17.60.025(A).
OUTDOOR MEDIA GROUP v. CITY OF BEAUMONT 14409
Chapter and is consistent with its intent and purpose.” Id.
§ 17.60.020(D). The city’s delineated intent and purpose
includes encouraging “a desirable urban character which has
a minimum of overhead clutter,” enhancing the “economic
value of the community and each area thereof through the reg-
ulation of the size, number, location, design and illumination
of signs,” and encouraging “signs which are compatible with
on-site and adjacent land uses.” Id. § 17.60.005.
[8] Notably, the Old Ordinance explicitly prohibited all
“Off-site signs, except temporary subdivision directional
signs as provided for in this Chapter.” Id. § 17.60.025(B).
“Off-site signs” were defined as “[a]ny sign which advertises
or informs in any manner businesses, services, goods, persons
or events at some location other than that upon which the sign
is located.” Id. § 17.60.010(M). Regulations governing the
Commercial-Freeway Service zone, where Outdoor Media
sought to erect its signs, were even more specific: the plan-
ning commission could grant permits for freeway-facing signs
only if the signs are “located upon or within five hundred
(500) feet of the property upon which the use identified is
located” and “in the vicinity of a freeway interchange and
within three hundred (300) feet of the freeway right-of-way
and six hundred (600) feet of the intersecting street right-of-
way.” Id. § 17.60.110(C). The Director of Planning must also
make specific findings regarding the proposed height in rela-
tion to the freeway elevation, the number and spacing of signs
in the area, and the sign’s height, design, and location in rela-
tion to its proposed use. Id. Finally, the Old Ordinance
required all signs to be “compatible with the style or character
of existing improvements upon lots adjacent to the site,”
including incorporating specific visual elements such as type
of construction materials, color, or other design detail. Id.
§ 17.60.200.
[9] We hold that these restrictions sufficiently cabined the
Director of Planning’s discretion by providing “adequate stan-
dards to guide the official’s decision.” The prohibition on off-
14410 OUTDOOR MEDIA GROUP v. CITY OF BEAUMONT
site signs requires only that the Director of Planning deter-
mine whether the proposed sign’s content is related to its site.
The definition of “off-site” is sufficiently clear to guide this
discretion, particularly when coupled with the additional
restrictions governing freeway-facing signs. In any case, the
off-site/on-site distinction is well-canvassed in our prior case
law. See Outdoor Sys., Inc. v. City of Mesa, 997 F.2d 604, 613
(9th Cir. 1993) (judicial precedent constitutes “narrow, objec-
tive, and definite standards” cabining official discretion). The
Director’s discretion is not unlimited, but cabined by specific
findings regarding the relationship of the sign to the site, the
freeway, and other signs in the area. The compatibility
requirement delineates fairly specific criteria regarding the
relationship between the sign and the site. See G.K. Ltd.
Travel, 436 F.3d at 1083.7 Although the design review criteria
are “somewhat elastic and require reasonable discretion to be
exercised by the permitting authority, this alone does not
make the Sign Code an unconstitutional prior restraint.” Id. at
1084; see also Ward v. Rock Against Racism, 491 U.S. 781,
794 (1989) (“While these standards are undoubtedly flexible,
and the officials implementing them will exercise consider-
able discretion, perfect clarity and precise guidance have
never been required even of regulations that restrict expres-
sive activity.”).
2. First Amendment: Regulation of Commercial Speech
[10] Outdoor Media claims that the Old Ordinance imper-
missibly regulated commercial speech without stating a sub-
stantial governmental interest, and that the regulations were
not narrowly tailored to those interests. Beaumont cited
7
The Planning Director’s discretion was further cabined by provisions
explicitly permitting administrative and judicial review of his decision.
See Old Ordinance §§ 17.60.020(H), 17.60.300(D)(6); see also Get Out-
doors II v. City of San Diego, ___ F.3d ___ (9th Cir. 2007) (emphasizing
appeals process as limit on officials’ discretion); Southworth v. Bd. of
Regents of Univ. of Wisconsin Sys., 307 F.3d 566, 588 (7th Cir. 2002)
(same).
OUTDOOR MEDIA GROUP v. CITY OF BEAUMONT 14411
among its legislative purposes a desire to preserve the city’s
aesthetics from “overhead clutter” and to “preclude potential
traffic and safety hazards through good signing.” Old Ordi-
nance § 17.60.005. As a regulation of commercial speech,
both the Supreme Court and our circuit have endorsed these
rationales as substantial governmental interests. See
Metromedia, 453 U.S. at 508-09; Ackerley Commc’ns, 108
F.3d at 1097-1100.8 Moreover, a complete ban on off-site
commercial billboards does not reach further than necessary
to achieve that goal. Metromedia, 453 U.S. at 508; Outdoor
Media Sys., 997 F.2d at 610-11. We therefore conclude that
the Old Ordinance’s regulation of billboards was not an
unconstitutional regulation of commercial speech and affirm
the dismissal of this claim.
3. First Amendment: Regulation of Noncommercial
Speech
[11] Although Metromedia allows a city to completely ban
off-site commercial billboards, it does not necessarily follow
that the city may treat noncommercial speech in a like fash-
ion. “The fact that the city may value commercial messages
relating to on-site goods and services more than it values
commercial communications relating to off-site goods and
services does not justify prohibiting an occupant from dis-
playing its own ideas or those of others.” Metromedia, 453
U.S. at 513. Applying this holding, we have explained that
“an ordinance is invalid if it imposes greater restrictions on
8
Outdoor Media’s complaint faults the city for failing to conduct studies
showing that off-site signs have an adverse effect upon the city’s aesthet-
ics or safety. In the context of regulating commercial speech, our case law
does not require any such analysis. See Ackerley, 108 F.3d at 1099-1100
(“As a matter of law Seattle’s ordinance, enacted to further the city’s inter-
est in aesthetics and safety, is a constitutional restriction on commercial
speech without detailed proof that the billboard regulation will in fact
advance the city’s interests.”); see also Metromedia, 453 U.S. at 509-10
(deferring to legislative judgments that billboards are traffic hazards and
a ban promotes the city’s aesthetic interests).
14412 OUTDOOR MEDIA GROUP v. CITY OF BEAUMONT
noncommercial than on commercial billboards or regulates
noncommercial billboards based on their content.” Nat’l
Advertising Co. v. City of Orange, 861 F.2d 246, 248 (9th Cir.
1988) (citing Metromedia, 453 U.S. at 513, 516).9
[12] Here, the Old Ordinance’s off-site ban prohibits signs
that “advertise[ ] or inform[ ] in any manner businesses, ser-
vices, goods, persons, or events at some location other than
that upon which the sign is located.” Old Ordinance
§ 17.60.010. This broad prohibition seems to reach beyond
off-site commercial copy to preclude the posting of many
noncommercial messages, if those messages are not related to
the site upon which the sign is located. See Desert Outdoor
Adv., Inc. v. City of Moreno Valley, 103 F.3d 814, 820 (9th
Cir. 1996). For example, a business owner may erect a sign
advertising a sale at his store, but may not erect an identical
sign that instead informs of an event at his local church. As
noted above, the New Ordinance solves this problem by
explicitly limiting the off-site ban to commercial copy and
including a message substitution clause that allows noncom-
mercial copy to replace legal commercial copy. But the Old
Ordinance lacks these safeguards. The City may have
intended the old off-site ban to reach only commercial speech,
but the ordinance’s broad language goes further. “Insofar as
the city tolerates billboards at all . . . it may not conclude that
the communication of commercial information concerning
goods and services connected with a particular site is of
greater value than the communication of noncommercial mes-
9
Contrary to the dissent, we find that content may well have played a
role in the denial of the permits. The City’s Director of Planning recom-
mended that the permits be denied because the signs “would result in
excessive, undue and adverse visual intrusion . . . by adding unrelated
advertising to a future new commercial facility” (emphasis added).
Because the term “advertising” is ambiguous and may include both com-
mercial and noncommercial messages, Outdoor Media has standing to
challenge the code as imposing too high a burden on noncommercial
speech.
OUTDOOR MEDIA GROUP v. CITY OF BEAUMONT 14413
sages.” Metromedia, 453 U.S. at 513, see also Desert Outdoor
Adv., 103 F.3d at 820.
[13] We also note that the Old Ordinance may also have
impermissibly regulated noncommercial speech on the basis
of content, by exempting certain noncommercial off-site signs
from the permit requirement. For example, political signs
relating to candidates or issues may be erected without a per-
mit, subject to certain time and size restrictions. Old Ordi-
nance § 17.60.025(A)(15). Certain directional and
informational signs are also exempt. Id. § 17.60.025(A)(11).
“Because the exemptions require City officials to examine the
content of noncommercial . . . signs to determine whether the
exemption applies, the City’s regulation of noncommercial
speech is content-based.” Desert Outdoor Adv., 103 F.3d at
820. Such restrictions are unconstitutional “unless the City
establishes that the ordinance is necessary to serve a compel-
ling state interest and that it is narrowly drawn to achieve that
end.” Id. (quoting Nat’l Adv. Co., 861 F.3d at 249).
[14] This case is before us on a motion to dismiss. The
record is therefore not yet developed regarding the constitu-
tionality of these restrictions. In addition, we reiterate that
only Outdoor Media’s damages claims survive the repeal of
the Old Ordinance, and “we cannot say whether this facial
infirmity should enable [the plaintiff] to recover damages, as
the record is inadequate at present to determine whether this
infirmity was the cause of [the plaintiff’s] harm.” Coral
Const. Co. v. King County, 941 F.2d 910, 927 (9th Cir. 1991).
At this juncture, it is enough to recognize that Outdoor Media
has sufficiently stated a claim that the Old Ordinance is
facially unconstitutional and has alleged damages stemming
from application of that ordinance. We therefore reverse the
dismissal of this claim.
4. First Amendment: Overbreadth
[15] Outdoor Media also claims, without explanation, that
the Old Ordinance is overbroad. We affirm dismissal of this
14414 OUTDOOR MEDIA GROUP v. CITY OF BEAUMONT
claim because the plaintiff is limited to damages, which are
unavailable for an overbreadth challenge. An overbreadth
claim is essentially a claim that a statute may be constitutional
as applied to the plaintiff but sweeps so broad as to unconsti-
tutionally suppress the speech of others not before the court.
See Taxpayers for Vincent, 466 U.S. at 798. This theory pre-
supposes that the ordinance is constitutional as applied to the
plaintiff. “On an overbreadth challenge [plaintiff] would also
be barred from collecting § 1983 damages which are available
only for violations of a party’s own constitutional rights.”
Advantage Media, L.L.C. v. City of Eden Prairie, 456 F.3d
793, 801 (8th Cir. 2006).
5. Equal Protection Clause
[16] Finally, Outdoor Media claims that the Old Ordinance
violates the Equal Protection clause. Because billboard opera-
tors are not a protected class, the city’s distinction between
off-site and on-site advertisers is sustained if rationally related
to a legitimate government interest. Kahawaiolaa v. Norton,
386 F.3d 1271, 1277-78 (9th Cir. 2004). Metromedia found
this distinction met the more stringent Central Hudson test,
because “offsite advertising, with its periodically changing
content, presents a more acute problem than does on-site
advertising.” Metromedia, 453 U.S. at 511 (plurality opinion);
see also Clear Channel, 340 F.3d at 813-14, 816. This ratio-
nale also satisfies the lower hurdle of rational basis review.
See generally Railway Express Agency v. New York, 336 U.S.
106, 109 (1949). We therefore affirm the dismissal of this
claim as well.
IV. Conclusion
We affirm the district court’s dismissal of Outdoor Media’s
claims for injunctive and declaratory relief as moot in light of
the revocation of the challenged ordinance. In addition, we
affirm the dismissal of the company’s procedural due process
claim because the company lacks vested rights in a permit
OUTDOOR MEDIA GROUP v. CITY OF BEAUMONT 14415
application. We hold the district court erred in dismissing
Outdoor Media’s First Amendment and Equal Protection
claims under the vested rights doctrine. After reviewing the
noticed ordinance, however, we conclude that none of these
allegations states a claim under our case law, with the excep-
tion of the claim that the Old Ordinance improperly regulated
noncommercial speech. We therefore reverse the dismissal of
this claim only, and remand for further deliberation in light of
this opinion. Each party shall bear its own costs on appeal.
AFFIRMED in part, REVERSED in part and
REMANDED.
CALLAHAN, Circuit Judge, concurring in part and dissent-
ing in part:
I concur in Parts I, II, III.A, and III.B of the majority opin-
ion. I also concur in Parts III.C.1, III.C.2, and III.C.4, but I
dissent from Part III.C.3 because I conclude that Outdoor
Media does not have standing to raise a facial challenge to the
regulation of noncommercial speech.
Article III standing requires (1) an injury in fact, (2) a
causal connection between the injury and the defendant’s con-
duct, and (3) redressability. Lujan v. Defenders of Wildlife,
504 U.S. 555, 560-62 (1992). Outdoor Media cannot establish
that it was injured by Beaumont’s former treatment of non-
commercial speech. See Get Outdoors II, LLC, v. City of San
Diego, ___ F.3d ___, ___ (9th Cir. 2007) (“Get Outdoors II
cannot leverage its injuries under certain, specific provisions
to state an injury under the sign ordinance generally.”).
Outdoor Media’s conditional use permit application was
denied based on Beaumont’s concerns for visual blight and
unrelated advertising in close proximity to an anticipated new
commercial development. Beaumont’s decision was not based
14416 OUTDOOR MEDIA GROUP v. CITY OF BEAUMONT
on the content of messages that Outdoor Media would have
posted had its conditional use permits been granted, nor could
it. Outdoor Media erects its billboard structure on leased prop-
erty, and then leases its billboard advertising space to the pub-
lic. Its application for the conditional use permits did not
contain the content of any messages. Indeed, message content
was unknown when Outdoor Media applied for the permits
because it was yet to be determined by Outdoor Media’s
future lessees.
In sum, Outdoor Media cannot establish that it was injured
by the provision of Beaumont’s former ordinance regulating
noncommercial speech. Accordingly, I would affirm the dis-
trict court’s dismissal of Outdoor Media’s complaint in it
entirety.