Advantage Advertising, LLC v. City of Hoover AL

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 04-16224 AUGUST 11, 2006
Non-Argument Calendar THOMAS K. KAHN
CLERK
________________________
D. C. Docket No. 02-01998-CV-P-S
ADVANTAGE ADVERTISING, LLC,
Plaintiff-Appellant,
versus
HOOVER, ALABAMA, CITY OF,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
_________________________
(August 11, 2006)
Before MARCUS, WILSON and PRYOR, Circuit Judges.
PER CURIAM:
This appeal by Advantage Advertising, LLC, of a summary judgment
regarding a sign ordinance of Hoover, Alabama, presents issues of standing and
whether the ordinance violates the right of speech guaranteed by the First
Amendment of the United States Constitution. See Hoover, Ala., Municipal Code,
App. 1, Art. X §§ 1.0–10.0 [hereinafter “Sign Ordinance”]. The district court
concluded that Advantage, which intended to erect off-premise billboards, had
standing to challenge only the provision that banned off-premise billboards, and
that provision did not violate the First Amendment. See Sign Ordinance § 7.0(D).
We affirm.
I. BACKGROUND
An ordinance of the City of Hoover, Alabama, regulates signs. Sign
Ordinance §§ 1.0–10.0. The ordinance requires individuals who intend to
construct a sign to apply for and obtain a permit. Id. §§ 1.1, 1.2. An official who
denies an application must provide a written statement of the reason of denial and
applicants may appeal a denial. Id. §§ 1.3, 1.4. The ordinance does not establish
time limits for either process. Id. “Off-premise billboards and signs which direct
attention to a business commodity, service, entertainment or attraction sold,
offered, or existing elsewhere than upon the same property upon which such sign is
displayed” are prohibited. Id. § 7.0(D). Exemptions and exceptions exist for
various types of signs. Id. §§ 8.2, 8.3.
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The appendix, in which the sign regulations are located, contains two
statements of purpose, which are titled “Purpose” and “Interpretation and
Purpose.” The provision titled “Purpose” provides, “The fundamental purpose of
this ordinance is to promote the public health, safety, morals and general welfare; .
. . [and] to avoid congestion on the public roads and streets.” Hoover, Ala.,
Municipal Code, App. I, Art. II, § 1.0. The provision titled “Interpretation and
Purpose” provides, “In their interpretation and application the provisions of this
ordinance shall be considered minimum requirements adopted for the promotion of
the public health, safety, morals, convenience, order, prosperity, and general
welfare of the community.” Id., App. I, Art. XI, § 1.0.
ADvantage is a business that buys or leases land to erect commercial and
noncommercial signs. In June and July, 2002, ADvantage submitted fifteen
applications for sign permits. Hoover denied each application under section 7.0(D)
of the ordinance, which prohibits off-premise signs. Sign Ordinance § 7.0(D).
ADvantage filed a complaint that alleged the ordinance violated the First
Amendment of the United States Constitution both facially and as applied to
ADvantage. See U.S. Const. Amend. I. ADvantage asserted that several
provisions of the ordinance granted unbridled discretion to government officials,
were unconstitutional prior restraints of speech, burdened fundamental methods of
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communication, favored commercial speech over noncommercial speech, regulated
noncommercial speech based on content, failed to state a substantial government
purpose, restricted too much speech, drew impermissible distinctions between
types of commercial speech, and violated principles of equal protection by favoring
certain speakers over others. ADvantage requested damages and preliminary and
permanent injunctions against enforcement of the ordinance.
Both ADvantage and Hoover filed motions for summary judgment. Hoover
submitted evidence in support of its motion that included the deposition testimony
of Dennis Dupont, a co-owner of ADvantage. DuPont testified that the “business
purpose” of ADvantage included leasing outdoor advertising signs “for political
messages.” In response to a follow-up question about whether ADvantage engaged
in political advertising, Dupont stated, “We could, yes. We have.” Dupont also
stated in a declaration submitted by ADvantage in support of its motion for
summary judgment, “In the past, the members of [ADvantage] have used the
company’s signs to communicate political and ideological messages . . . .”
In deciding whether to grant summary judgment, the district court first
concluded that ADvantage had standing “to challenge only the constitutionality of
§ 7.0(D) of the [ordinance] because it was the only provision of the ordinance
under which [ADvantage’s] permits were denied.” “While [ADvantage] seeks to
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assert a facial challenge to the entire [ordinance],” the district court reasoned, “the
only actual injury it claims to have suffered is the denial of its requests for permits
to erect billboards based on § 7.0(D) of the [ordinance].” The district court
concluded that ADvantage did not have standing to challenge facially provisions of
the ordinance related to “the City’s permitting and appeals process,” see Sign
Ordinance § 1.0, the lack of time limitations, see id., and exemptions for various
noncommercial speech, see, e.g., id. § 8.2(A).
The district court next addressed whether section 7.0(D) of the Sign
Ordinance violated the First Amendment. The district court considered three
questions: whether the prohibition of off-premise signs in section 7.0(D) is an
unconstitutional prior restraint of speech; whether section 7.0(D) grants unbridled
discretion to city officials; and whether the lack of time limits to render a decision
under section 7.0(D) creates unbridled discretion. The district court rejected each
argument of ADvantage and entered summary judgment in favor of Hoover.
II. STANDARD OF REVIEW.
We review de novo a denial of summary judgment. CAMP Legal Def.
Fund, Inc. v. City of Atlanta, 451 F.3d 1257, 1268 (11th Cir. 2006). We review de
novo determinations of standing. Id.5
III. DISCUSSION
This appeal presents two issues. The first issue is whether the district court
erroneously concluded that section 7.0(D) does not violate the freedom of speech
guaranteed by the First Amendment. The second issue is whether the district court
erred when it concluded that ADvantage had standing to challenge only the
prohibition of off-premise signs in section 7.0(D). We discuss each issue in turn.
A. ADvantage’s Challenges to Section 7.0(D) Fail.
ADvantage challenges the conclusion of the district court that Section 7.0(D)
is a constitutional restriction of speech on three grounds. ADvantage argues that
the district court erroneously concluded that section 7.0(D) is a constitutional prior
restraint of speech, section 7.0(D) does not grant unbridled discretion, and the lack
of time limits does not create unbridled discretion in the context of section 7.0(D).
We discuss each issue in turn.
The district court concluded that section 7.0(D) is a constitutional prior
restraint of speech. We agree. To be constitutional, a prior restraint of speech
must satisfy three requirements: the restriction “must be (1) content-neutral, (2)
narrowly tailored to serve a significant government interest, and (3) leave open
ample alternative channels for communication of the information.” CAMP, 451
F.3d at 1280.
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Section 7.0(D) satisfies each of these three requirements. First, section
7.0(D) is content-neutral because “[i]t regulates signs not based on the viewpoint
of the speaker, but based on the location of the signs.” Messer v. City of
Douglasville, 975 F.2d 1505, 1509 (11th Cir. 1992). Second, regulations
concerning the size, location, and manner of signs directly advance the “substantial
governmental goals” of Hoover in public safety, including traffic safety. Id. at
1510; see Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 511, 101 S. Ct.
2882, 2894 (1981) (concluding that a direct relation of a prohibition of off-site
advertising to traffic safety “is not altered by the fact that the ordinance is
underinclusive because it permits onsite advertising”). ADvantage contends that a
purpose to advance traffic safety cannot be discerned in section 7.0(D), but the
appendix to the Municipal Code includes two such statements of purpose that
govern the interpretation of the Sign Ordinance. See Hoover, Ala., Municipal
Code, App. I, Art. II, § 1.0; id. Art. XI, § 1.0. The “obvious aim” of several
provisions supports the argument of Hoover that concern for traffic safety
motivated its restrictions on signs. Dills v. City of Marietta, 674 F.2d 1377, 1381
(1982); see Sign Ordinance § 2.0(A) (sign “shall be located so as not to cause a
safety hazard”); id. § 6.0(A) (sign shall not “interfere with any public right-of-
way”); id. § 6.0(B) (“No sign shall be located as to cause a public hazard, obstruct
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or impair motorists’ vision, diminish safe ingress and egress to any property . . .
.”). Third, section 7.0(D) is not overly restrictive because it leaves open ample
alternative channels of communication in the form of on-premise speech. The
district court correctly concluded that section 7.0(D) withstands scrutiny as a prior
restraint of speech.
We also agree with both the conclusions of the district court that section
7.0(D) and the lack of time limits for rendering decisions under section 7.0(D) do
not grant unbridled discretion to officials of Hoover. First, section 7.0(D) does not
grant unbridled discretion to Hoover officials because their discretion is limited to
the objective determination of whether a sign is off-premise or on-premise.
Second, the lack of time limits to grant or deny a permit under section 7.0(D) does
not render section 7.0(D) constitutionally infirm because we have held “that the
lack of time limits is constitutionally acceptable,” Granite State Outdoor Adver.,
Inc. v. City of St. Petersburg, 348 F.3d 1278, 1283 (11th Cir. 2003), in the context
of “a content-neutral permitting scheme,” id. at 1282. We agree with the district
court that both these arguments fail.
B. ADvantage Lacks Standing to Challenge Provisions Other than
Section 7.0(D).
ADvantage argues that the district court erroneously concluded that it lacked
standing to challenge any provision other than section 7.0(D). “A plaintiff who
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invokes the jurisdiction of a federal court bears the burden to show ‘(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.’” CAMP, 451
F.3d at 1269 (quoting Granite State Outdoor Adver., Inc. v. City of Clearwater,
351 F.3d 1112, 1116 (11th Cir. 2003)). “What a plaintiff must prove to establish
standing depends on the nature of the challenge to his or her standing.” Id. at 1274
(internal quotations omitted). ADvantage contends that it has standing to
challenge several provisions that allegedly grant unbridled discretion to city
officials and two provisions that are unconstitutional prior restraints of speech. We
address each issue in turn.
1. ADvantage Lacks Standing to Challenge the Lack of Several
Procedural Safeguards that Allegedly Grant
Unbridled Discretion to City Officials.
ADvantage lacks standing to challenge the lack of several procedural
safeguards that allegedly granted unbridled discretion to city officials. See Sign
Ordinance §§ 1.0, 1.3, 1.4. “[W]hen a licensing statute allegedly vests unbridled
discretion in a government official over whether to permit or deny expressive
activity, one who is subject to the law may challenge it facially without the
necessity of first applying for, and being denied, a license.” City of Lakewood v.
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Plain Dealer Publ’g Co., 486 U.S. 750, 755–56, 108 S. Ct. 2138, 2143 (1988). “If
it is one who is subject to, or imminently will be subject to, the provisions that
allegedly grant unbridled discretion, then [ADvantage] has standing to challenge
these provisions.” CAMP, 451 F.3d at 1274 (internal quotation omitted).
Although ADvantage challenged the lack of several procedural safeguards
that allegedly grant unbridled discretion to city officials, see Sign Ordinance § 1.0
(no right to erect a sign if the permit application is not granted or denied within an
established time limit); id. (no right of judicial review of denials of permit
applications); id. §§ 1.3, 1.4 (no time limits to grant or deny permits and to hear an
appeal), ADvantage was not subject to those provisions because off-premise signs
are never permitted under the ordinance. See id. § 7.0(D). ADvantage did not
allege in its complaint or present evidence that it intended to construct signs that
might be permitted under the statute, which would subject ADvantage to the lack
of procedural safeguards. ADvantage lacks standing to challenge the lack of
procedural safeguards.
2. ADvantage Has Standing to Challenge the Permit Requirement as
an Unconstitutional Prior Restraint of Speech.
ADvantage also argues that the Sign Ordinance imposes unconstitutional
prior restraints on speech because it requires a permit to erect signs, id. § 1.1, and
restricts political speech, id. § 8.2(B). “In a challenge of a prior restraint on speech
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the plaintiff must establish that the challenged provision pertains to its activity, and
not merely that it is ‘subject to the law.’” CAMP, 451 F.3d at 1276 (quoting
Lakewood, 486 U.S. at 755–56, 108 S. Ct. at 2143). This standard is more
rigorous than the standard applied in challenges of alleged grants of unbridled
discretion. CAMP, 451 F.3d at 1276.
ADvantage lacks standing to challenge the requirement for a permit. See
Sign Ordinance § 1.1. The permit requirement does not pertain to the billboards
that ADvantage proposed to construct. Those billboards are completely prohibited.
See Sign Ordinance § 7.0(D). ADvantage fails to establish that the permit
requirement, which subjects other signs to certain restrictions, pertains to its
proposed signs, which are completely banned.
ADvantage also fails to establish that it intended to engage in political
advertising. Although Dupont testified that ADvantage had the capacity to and
previously had engaged in political advertising, ADvantage fails to explain how
the regulation of political campaign signs under section 8.2(D) pertains to its
activity of billboard advertising, which is categorically prohibited by the Sign
Ordinance without regard to content. ADvantage lacks standing to challenge
sections 1.1 and 8.2(B).
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IV. CONCLUSION
We affirm the summary judgment that section 7.0(D) does not violate the
First Amendment and ADvantage lacked standing to challenge any provision other
than section 7.0(D).
AFFIRMED.
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