Get Outdoors II, LLC v. City of San Diego ( 2007 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
GET OUTDOORS II, LLC, A Nevada 
Limited Liability Company, dba
GET OUTDOORS, LLC, in No. 05-56366
California,
Plaintiff-Appellant,  D.C. No.
CV-03-01436-WQH
v. OPINION
CITY OF SAN DIEGO, CALIFORNIA,
Defendants-Appellees.

Appeal from the United States District Court
for the Southern District of California
William Q. Hayes, District 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,* Senior District Judge.
Opinion by Judge Hall
*The Honorable Lyle E. Strom, Senior United States District Judge for
the District of Nebraska, sitting by designation.
14473
14476 GET OUTDOORS II v. SAN DIEGO
COUNSEL
E. Adam Webb, The Webb Law Group, Atlanta, Georgia, for
the appellant.
Randal R. Morrison, Sabine and Morrison, San Diego, Cali-
fornia, for the appellee.
OPINION
HALL, Senior Circuit Judge:
This appeal is the first of three unrelated but similar cases
requiring us to decide whether and to what extent an outdoor
advertising company has standing to challenge the constitu-
tionality of a municipal sign ordinance. In this opinion, we
will outline the general legal principles applicable to all three
cases and decide the appeal in the challenge to the San Diego
ordinance.1 We affirm the district court’s order granting sum-
mary judgment to the City of San Diego.
I. Background
Get Outdoors II is an outdoor advertising company attempt-
ing to build and operate signs in the City of San Diego (“the
City”). On June 2, 2003, Get Outdoors II filed twenty-four
applications for billboard permits with the City, through its
Development Services Department. Get Outdoors II alleges
that it had already signed leases with various real property
owners to post signs on their parcels.
When the company’s representative dropped off the appli-
cations, a city official informed him that the City’s sign ordi-
1
We decide the other two cases in separately published memorandum
dispositions. See Get Outdoors II, LLC v. City of Lemon Grove, ____ ; Get
Outdoors v. City of Chula Vista, ____.
GET OUTDOORS II v. SAN DIEGO 14477
nance prohibited new billboards but agreed to review the
applications. The City then performed a complete review of
the applications and notified Get Outdoors II the next day that
it could not grant permits for any of the signs under San
Diego Municipal Code (“SDMC”) § 142.1210, which prohib-
its new signs bearing “off-premises” messages.2 The City sent
a formal letter, dated June 9, to the same effect.3 In a later
declaration, a city development official explained that, in
addition to violating the billboard ban, each of the permit
applications was missing key documents and that, in any case,
the proposed billboards violated size and height restrictions.
Each of the proposed billboards had a display square footage
of 672 and a pole height of 50 feet in areas where display was
limited to 50, 150 or 350 square feet and pole height limited
to 20 or 30 feet.
Get Outdoors II filed this lawsuit on July 21, 2003. Its 33-
page, 105-paragraph second amended complaint raises four-
teen claims for relief based on the First and Fourteenth
Amendments. It argues that the City’s billboard regulations
are unconstitutionally overbroad under the First and Four-
teenth Amendments because they favor commercial over non-
commercial speech and some types of noncommercial speech
2
The “off-premises” or “off-site” distinction is a familiar one in sign
regulation. The City in this case has restricted its sign permits to “on-
premises” messages, which are defined as “those identifying or advertising
an establishment, person, activity, goods, products, or services located on
the premises where the sign is installed.” SDMC § 142.1210(a)(1)(A).
“Off-premises” or “off-site” signs, by contrast, advertise products or ser-
vices that are sold or provided elsewhere. See generally Metromedia, Inc.
v. City of San Diego, 453 U.S. 490 (1981).
The City exempts non-conforming signs that were lawfully erected
before July 19, 1983. See SDMC § 127.0303.
3
The declarations offered by the City and Get Outdoors II differ as to
the dates — some say the relevant events occurred on June 2 and 3, others
on June 5 and 6. Both parties agree that the City contacted Get Outdoors
II the day after the permits were submitted and sent the formal letter on
June 9.
14478 GET OUTDOORS II v. SAN DIEGO
over others, and that its own rights were violated by the ban
on off-site signs, as well as certain size and height restrictions.
It also argued that the permitting process was an invalid prior
restraint because it lacked a deadline provision and because it
gave city officials unbridled discretion to grant or deny per-
mits. Get Outdoors II requested injunctive relief, damages,
and attorney fees. Notably, it requested that the court invali-
date the entire sign ordinance.
The parties filed cross-motions for summary judgment,
which were argued in November 2004. By that time, the City
had enacted several legislative amendments, including a
“message substitution” clause, a 45-day deadline for decisions
on all permit applications, and a judicial review provision. See
SDMC §§ 142.1210(a)(10) (D); 129.0808; 129.0809. The dis-
trict court granted summary judgment to the City on July 13,
2005. See Get Outdoors II v. City of San Diego, 381 F. Supp.
2d 1250 (S.D. Cal. 2005).
The district court held that Get Outdoors II lacked standing
to bring its overbreadth claim because it was challenging pro-
visions of the ordinance other than the provision that applied
to it, found the billboard ban constitutional, rejected the chal-
lenge to the permit procedure as moot, and rejected the unbri-
dled discretion claim on the merits. The court also held that
the challenged provisions were severable because the content-
neutral size and height restrictions may function indepen-
dently from the provisions regulating sign copy and location.
It granted summary judgment to the City.
Get Outdoors II filed its timely appeal on August 17, 2005.
We review the district court’s dismissal for lack of standing,
dismissal for mootness, and grant of summary judgment de
novo. See Ruiz v. City of Santa Maria, 160 F.3d 543, 548 (9th
Cir. 1998); Desert Outdoor Advertising, Inc. v. City of
Moreno Valley, 103 F.3d 814, 818 (9th Cir. 1996). We may
affirm on any ground supported by the record. Lambert v.
Blodgett, 393 F.3d 943, 965 (9th Cir. 2004). We hold that the
GET OUTDOORS II v. SAN DIEGO 14479
City’s billboard size and height restrictions do not violate the
First Amendment, that Get Outdoors II’s permit applications
violated these restrictions, and that it therefore lacks standing
to challenge the ban on off-premises messages. Because we
also hold that the challenge to the permit process fails, we
affirm.
II. Standing
We turn first to the question of whether Get Outdoors II has
standing to challenge the entire sign ordinance on the basis of
the injuries it has alleged here. Because Get Outdoors II has
made what it calls an overbreadth claim, it argues that it falls
into a special exceptional category of standing doctrine.
Throughout its briefs, Get Outdoors II uses “overbreadth” to
describe two different arguments: (1) a severability argument
that an injury caused by one provision of the sign ordinance
should be considered an injury caused by the entire sign ordi-
nance; and (2) a traditional overbreadth claim that certain pro-
visions of the sign code are unconstitutionally overbroad
because they threaten to burden the speech of non-parties to
this case. The discussion that follows addresses both of these
arguments.
A. Lujan and Overbreadth Standing
[1] The “irreducible minimum” of standing under Article
III of the Constitution is 1) an injury in fact which is “actual,
concrete, and particularized”; 2) a causal connection between
that injury and the defendant’s conduct; and 3) a likelihood
that the injury can be redressed by a favorable decision of the
court. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61
(1992). The federal courts have supplemented this require-
ment of “constitutional standing” with the doctrine of “pru-
dential standing,” which requires us to ask whether the
plaintiff’s claim is sufficiently individualized to ensure effec-
tive judicial review. See Elk Grove Unified School Dist. v.
Newdow, 542 U.S. 1, 11 (2004); Sec’y of State v. Joseph H.
14480 GET OUTDOORS II v. SAN DIEGO
Munson Co., 467 U.S. 947, 956 (1984); Schlesinger v.
Reservists Committee to Stop the War, 418 U.S. 208 (1974).
We employ the prudential standing doctrine to avoid usurping
the legislature’s role as the policymaking body in our separa-
tion of powers. See Prime Media v. City of Brentwood, 485
F.3d 343, 353 (6th Cir. 2007) (hereinafter “Prime Media II”).
When a plaintiff states an overbreadth claim under the First
Amendment, however, we suspend the prudential standing
doctrine because of the special nature of the risk to expressive
rights. See Broadrick v. Oklahoma, 413 U.S. 601, 612 (1973);
Dombrowski v. Pfister, 380 U.S. 479, 486 (1965). While the
prudential standing doctrine typically prevents us from hear-
ing lawsuits on the basis of injuries to non-parties, the over-
breadth doctrine operates as a narrow exception permitting the
lawsuit to proceed on the basis 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, 413 U.S. at 612. In other
words, a plaintiff challenging a law as overbroad argues that
the law is constitutionally valid as applied to him, but uncon-
stitutional as to others. See, e.g., Virginia v. Am. Booksellers
Ass’n, Inc., 484 U.S. 383 (1988); New York v. Ferber, 458
U.S. 747 (1982).
[2] Even when raising an overbreadth claim, however, we
ask whether the plaintiff has suffered an injury in fact and can
satisfactorily frame the issues on behalf of these non-parties.
See Munson, 467 U.S. at 958; Gospel Missions of Am. v. City
of Los Angeles, 328 F.3d 548, 554 (9th Cir. 2003). Without
this bare minimum of standing, the overbreadth exception
would nullify the notion of standing generally in First
Amendment litigation. We therefore agree with a string of
recent decisions in other circuits holding that the three Lujan
elements still apply in the overbreadth context. See CAMP
Legal Defense Fund, Inc. v. City of Atlanta, 451 F.3d 1257,
1269-72 (11th Cir. 2006); accord Prime Media II, 485 F.3d
at 349-50; KH Outdoor, L.L.C. v. Clay County, 482 F.3d
GET OUTDOORS II v. SAN DIEGO 14481
1299, 1305 (11th Cir. 2007); Advantage Media, L.L.C. v. City
of Eden Prairie, 456 F.3d 793, 799 (8th Cir. 2006); see gener-
ally Valley Forge Christian College v. Americans United for
the Separation of Church and State, Inc., 454 U.S. 464, 472
(1982).
In this case, Get Outdoors II challenges the off-site ban, as
well as the rest of the sign code, on the basis of the harm it
causes to other potential speakers, specifically noncommercial
speakers. Get Outdoors II must still show, however, that it
meets the Lujan requirements for each of the provisions it
wishes to challenge as overbroad.
B. Get Outdoors II’s Standing
Having established that Get Outdoors II must meet all three
Lujan requirements for any claim it wishes to make, we turn
to deciding where and to what extent Get Outdoors II has
standing. The injuries alleged in this case are as follows: (1)
the denial of the permits; (2) being subjected to an unconstitu-
tional content-based ban, and (3) being subjected to an uncon-
stitutional prior restraint. Therefore, we must determine which
provisions caused these injuries and whether these injuries are
redressable by a favorable decision from this court.
The permits were denied explicitly under the City’s ban on
off-site signs. This was the provision cited in person, in the
informal telephone call, and the formal letter. The City has
also demonstrated in its affidavits that it would have indepen-
dently denied the permits under its size and height restric-
tions. Because we have found causation where the plaintiff
has shown a provision would certainly be used against it, see
Klein v. San Diego County, 463 F.3d 1029, 1033 & n.3 (9th
Cir. 2006), we hold for our purposes here that the size and
height restrictions constitute a secondary cause of the denial
of the permits. Cf. North Avenue Novelties, Inc. v. City of Chi-
cago, 88 F.3d 441, 443-44 (7th Cir. 1996) (reading complaint
broadly to incorporate a challenge to provision that did not
14482 GET OUTDOORS II v. SAN DIEGO
directly cause, but otherwise would have caused, the plain-
tiff’s permits to be denied). Get Outdoors II would have us
take an even broader view of its case, however. It argues that
its injuries should be attributed to the entire sign code and that
it has standing, accordingly, to challenge these other provisions.4
[3] Get Outdoors II has standing to challenge only those
provisions that applied to it. In 4805 Convoy v. City of San
Diego, 183 F.3d 1108 (9th Cir. 1999), for example, the City
revoked a nude dancing license from the plaintiff, who pro-
ceeded to challenge the procedures for granting, as well as
revoking, the licenses. We held that the plaintiff had standing
to challenge only the revocation procedures. Id. at 1111. Get
Outdoors II cannot leverage its injuries under certain, specific
provisions to state an injury under the sign ordinance gener-
ally. See also Covenant Media of South Carolina, LLC v. City
of North Charleston, 2007 WL 1953381 at * 6 (4th Cir. July
6, 2007) (holding that billboard company’s standing to chal-
lenge the permit procedure “does not provide it with a pass-
port to explore the constitutionality of every provision of the
Sign Regulation”).
Having determined the nature of the alleged injuries and
their specific causes, we now ask whether these injuries are
redressable. The blueprint for the district court’s holding on
this issue was Harp Advertising Illinois, Inc. v. Village of Chi-
cago Ridge, 9 F.3d 1290 (7th Cir. 1993), where a billboard
company had challenged the village’s off-site ban after seek-
ing permits for signs that violated size and height rules. As the
Seventh Circuit explained, in dismissing for lack of standing,
“[a]n injunction against the portions of the sign and zoning
4
We need not reach the question of severability of the provisions con-
tained in the City’s sign ordinance because it is clear that only the specific
provisions discussed here injured Get Outdoors II. Severability would
become relevant, however, were Get Outdoors II to prevail on its claims
for injunctive relief, and we were to decide how much, if any, of the sign
code to invalidate.
GET OUTDOORS II v. SAN DIEGO 14483
codes that [Harp] has challenged [i.e., the off-site sign ban]
would not let it erect the proposed sign; the village could
block the sign simply by enforcing another, valid ordinance
[i.e., the size and height restrictions] already on the books.”
Id. at 1292. The court reiterated that redressability is part of
the notion that any concrete harm occurred. Id.
The Seventh Circuit has since limited Harp in a case where
the court determined that the plaintiff was implicitly challeng-
ing these secondary restrictions as well. See North Avenue, 88
F.3d at 443-44. Similarly, Get Outdoors II urges us to find
that its claims are redressable because it has also explicitly
challenged the size and height restrictions. For this reason, its
appeal here is unlike Harp, and unlike two otherwise similar
cases in other circuits where the billboard company lacked
standing due to a violation of a provision not challenged in
the case at bar. See KH Outdoor, 482 F.3d at 1303-04; Advan-
tage Media, 456 F.3d at 801.
[4] We find that Get Outdoors II’s injuries under the sub-
stantive provisions of the City’s sign regulations would be
redressed by a decision from this court that invalidated both
the size and height restrictions as well as the off-site ban. We
note, however, that because standing is addressed on a claim
by claim basis, an unfavorable decision on the merits of one
claim may well defeat standing on another claim if it defeats
the plaintiff’s ability to seek redress. Cf. Prime Media, Inc. v.
City of Brentwood, 398 F.3d 814, 821 (6th Cir. 2005) (herein-
after “Prime Media I”) (denying one claim on the merits and
remanding to the district court to make a new determination
of standing on the other claims).
III. The Size and Height Restrictions
[5] Size and height restrictions on billboards are evaluated
as content-neutral time, place and manner regulations.5 See
5
We construe the challenge to the size and height restrictions as an argu-
ment based on the effect on noncommercial speech because Get Outdoors
14484 GET OUTDOORS II v. SAN DIEGO
County of Riverside, 337 F.3d at 1114-15 (9th Cir. 2003);
Prime Media I, 398 F.3d at 818. A content-neutral time,
place, and manner restriction must be narrowly tailored to
serve a significant government interest, and must leave open
ample alternative channels of communication. Flint v.
Dennison, 488 F.3d 816, 830 (9th Cir. 2007). Specifically, the
regulations must not be “substantially broader than necessary
to protect the city’s interests. See Members of the City Coun-
cil of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 808
(1984)
The Supreme Court has recognized that a city’s interests in
traffic safety and aesthetics are sufficient government inter-
ests for the purposes of this analysis. See Metromedia, Inc. v.
City of San Diego, 453 U.S. 490, 507-08 (1981). The City has
stated that the purpose of its sign code is “to optimize com-
munication and quality of signs while protecting the public
and the aesthetic character of the City.” SDMC § 142.1201.
That is all our review requires to prove a significant interest.
See Ackerley v. Krochalis, 108 F.3d 1095, 1099-1100 (9th
Cir. 1997).
[6] To further these interests, the City has calibrated its size
and height restrictions for “ground signs,” which include bill-
boards, to the width of the adjacent public rights-of-way and
the speed limit. See Table 142-12H, SDMC §142.1240. Dis-
play square footage, for example, varies from 32 square feet
for the narrowest rights-of-way with the lowest speed limits,
to 300 square feet for freeway-oriented signs. See Table 142-
12H, § 142.1240. We find that these size and height restric-
II used the noncommercial speech standard in structuring its complaint. A
challenge based on the effect on commercial speech would be evaluated
under the less stringent test taken from Central Hudson Gas & Elec. Corp.
v. Public Serv. Comm’n of New York, 447 U.S. 557, 564 (1980) (requiring
that laws affecting commercial speech seek to implement a substantial
governmental interest, directly advance that interest, and reach no further
than necessary to accomplish the given objective.)
GET OUTDOORS II v. SAN DIEGO 14485
tions are not substantially broader than necessary to protect
the city’s interests in traffic safety and aesthetics, and directly
advance the city’s interests. See Taxpayers for Vincent, 466
U.S. at 808 & n.27; see also Prime Media I, 398 F.3d at 822
(declining to require government to justify how it calculated
size and height restrictions). Further, because these restric-
tions leave open alternative channels of communication —
indeed they stop short of banning all billboards — we hold
that they do not foreclose any alternative avenues of commu-
nication. See Metromedia, 543 U.S. at 501.
[7] We therefore uphold San Diego’s size and height
restrictions on billboards as valid, content-neutral, time, place
and manner restrictions.
IV. The Off-Site Sign Ban
[8] We determined in Part II, supra, that our ability to grant
relief in this case hinged on the possibility that we would
invalidate both the off-site sign ban and the size and height
restrictions. We have now decided this latter set of restrictions
is constitutional, and validly prohibits the construction of the
proposed billboards. Therefore, even a decision enjoining the
off-site ban would not redress the injury Get Outdoors II suf-
fered due to the denial of its permits. See Covenant Media,
2007 WL 1953381 at * 6; Prime Media, 485 F.3d at 349-50;
KH Outdoor, 482 F.3d at 1305; Advantage Media, 456 F.3d
at 799; Harp, 9 F.3d at 1292. Nor would nominal damages be
appropriate under these circumstances. See County of River-
side, 337 F.3d at 1115.
Accordingly, we do not reach Get Outdoors II’s claim
regarding the off-site ban.
V. Prior Restraint
A person subject to a licensing ordinance may make a
facial, First Amendment attack on that ordinance without ever
14486 GET OUTDOORS II v. SAN DIEGO
applying for a permit because the threat of the prior restraint
itself constitutes an actual injury. See City of Lakewood v.
Plain Dealer Publishing Co., 486 U.S. 750, 759 (1988). The
Supreme Court has espoused two definitions of a prior
restraint: an ordinance that vests unbridled discretion in the
licensor, see id.; Forsyth County v. Nationalist Movement,
505 U.S. 123 (1992), or an ordinance that does not impose
adequate time limits on the relevant public officials, see FW/
PBS, Inc. v. City of Dallas, 493 U.S. 215 (1990). Get Out-
doors II alleges that the sign ordinance in this case is invalid
for both reasons, but we must first evaluate its standing to
bring this part of its challenge.
As we previously discussed, no claim is exempt from Arti-
cle III standing requirements of injury in fact, causation and
redressability. Prior restraint claims are unique, however,
because the threat of the prior restraint itself constitutes the
injury-in-fact. Thus, a party who is subject to “a licensing
statute allegedly vest[ing] unbridled discretion in a govern-
ment official over whether to permit or deny expressive activ-
ity” may challenge the statute without subjecting itself to the
application process. City of Lakewood v. Plain Dealer Pub-
lishing Co., 486 U.S. 750, 755-56 (1988). In other words,
“[o]ne who might have had a license for the asking” may
challenge the licensing scheme as a prior restraint. Thornhill
v. Alabama, 310 U.S. 88, 97 (1940).
[9] Get Outdoors II challenges the discretionary provisions
contained in the City’s sign ordinance and the absence of a
time-limit provision. However, Get Outdoors II’s applications
to erect billboard structures were denied on grounds that are
constitutionally valid, and neither its filings nor its actions in
this case have evinced any intent to file permit applications
that comply with these requirements. Thus, Get Outdoors II
cannot show that it would ever be genuinely threatened by an
unconstitutional prior restraint in this case. In other words,
Get Outdoors II is not a plaintiff who “might have had a
license for the asking.” No change in the permit procedure
GET OUTDOORS II v. SAN DIEGO 14487
would result in the approval of the permits it requests. See KH
Outdoor, 482 F.3d at 1304-05 (dismissing all claims for lack
of redressability). Further, because its permits were indepen-
dently invalid, we cannot say there it suffered any injury com-
pensable by even nominal damages. See County of Riverside,
337 F.3d at 1115. We therefore hold that Get Outdoors II
lacks standing to challenge the permitting process.6
In summary, we have found that Get Outdoors II’s claims
fail on the basis of standing, mootness and the merits. Accord-
ingly, the district court’s order granting summary judgment is
AFFIRMED.
6
The district court correctly acknowledged the absence of injury in fact
for the procedural safeguards provision, noting that “the lack of injury in
fact undermines Plaintiff’s standing to bring this overbreadth claim.” Get
Outdoors II, LLC v. City of San Diego, 381 F. Supp. 2d 1250, 1269 (S.D.
Cal. 2005) (citing 4805 Convoy, Inc., 183 F.3d at 1112). It resolved this
claim based on mootness “assuming, arguendo that Plaintiff has standing
to assert its claim[.]” Id. at 1270. We agree that this mootness determina-
tion is an alternate basis for affirming summary judgment regarding the
challenge to the lack of procedural safeguards.