Show Media California, LLC v. City of Los Angeles

FILED
NOT FOR PUBLICATION APR 18 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
SHOW MEDIA CALIFORNIA, LLC, a No. 10-57015
California limited liability company,
D.C. No. 2:09-cv-03270-ABC-
Plaintiff - Appellant, JWJ
v.
MEMORANDUM *
CITY OF LOS ANGELES, a California
municipality,
Defendant - Appellee.
Appeal from the United States District Court
for the Central District of California
Audrey B. Collins, Chief District Judge, Presiding
Argued and Submitted March 8, 2012
Pasadena, California
Before: FARRIS, CLIFTON, and IKUTA, Circuit Judges.
When the City of Los Angeles refused to accept Show Media’s applications
to replace two off-site sign structures owned by previous lease-holders, Show
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Media filed suit against the City. Show Media appeals the district court’s dismissal
of its claims, arguing (1) that the rebuild provision of the City’s Sign Ordinance is
unconstitutional and (2) that the district court misapplied the standard for pleading
by improperly resolving disputed factual issues in ruling on the City’s 12(b)(6)
motion. We affirm.
I
Show Media does not have standing to challenge L.A. Municipal Code
§ 91.6216.4.3 (the rebuild provision) as unconstitutional. Even if we determined
that the rebuild provision were invalid, Show Media would be prohibited from
obtaining a permit under the sign ordinance, which bans off-site signs such as
Show Media’s. See Get Outdoors II, LLC v. City of San Diego, 506 F.3d 886 (9th
Cir. 2007); see also Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-1 (1992). If
we construe Show Media’s complaint as a challenge to the sign ordinance, as
opposed to the rebuild provision, such challenge would fail on the merits.
“We review de novo the constitutionality of a local ordinance.” World Wide
Rush, LLC v. City of Los Angeles, 606 F.3d 676, 684 (9th Cir. 2010) (internal
citation and quotations omitted). The communicative aspects of billboards are
protected by the First Amendment, Metromedia, Inc. v. City of San Diego, 453
U.S. 490, 502 (1981), and we assess the constitutionality of restrictions on such
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commercial speech using the four-part Central Hudson test. See Cent. Hudson Gas
& Elec. Corp. v. Pub. Serv. Comm’n of N.Y., 447 U.S. 557 (1980). At issue here
are the test’s second, third, and fourth prongs. See World Wide Rush, 606 F.3d at
684.
A restriction on commercial speech must seek “to implement a substantial
governmental interest,” Metromedia, 453 U.S. at 507, and the interest may be
unconstitutionally underinclusive if it exempts some speech from the restriction,
World Wide Rush, 606 F.3d at 685. The “effect of the challenged restriction,”
however, must “be evaluated in the context of the entire regulatory scheme.”
World Wide Rush, 606 F.3d at 685, quoting Greater New Orleans Broad. Ass'n,
Inc. v. United States, 527 U.S. 173, 192 (1999). The City has a substantial
governmental interest in reducing billboard blight while complying with the Fifth
Amendment’s takings requirements.
A restriction on commercial speech must directly advance the government’s
interest. Metromedia, 453 U.S. at 507. Exceptions to a regulation may so
undermine that interest, however, that the regulation cannot directly advance it.
Metro Lights, L.L.C. v. City of Los Angeles, 551 F.3d 898, 904-05 (9th Cir. 2009).
The Rebuild Provision does not in this way make the Sign Ordinance
unconstitutionally underinclusive. Allowing routine maintenance to existing signs
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will slow the signs’ disappearance, but it will not prevent their gradual
disappearance through landowners’ decisions not to renew site leases, sign owners’
failure to make timely preventative maintenance, or catastrophic accidents such as
earthquakes. See Ackerley Commc’ns of Nw. Inc. v. Krochalis, 108 F.3d 1095,
1097 (9th Cir. 1997) (gradual loss of leases will reduce the overall number of
billboards). Accordingly, the Rebuild Provision does not “so undermine [the Sign
Ordinance as a whole] that it cannot materially advance its aim.” Metro Lights,
551 F.3d at 914 (citation and quotation marks omitted). Additionally, the Rebuild
Provision directly advances the City’s interest in ensuring that existing billboards
are kept in a safe and attractive state of repair, rather than falling into a dangerous
or ugly state of dilapidation. We agree with the district court’s conclusion that the
City’s regulation strikes a balance between “its goals of avoiding the financial
strain of paying just compensation, while guaranteeing either the adequate
maintenance of existing signs or, if not, the elimination of the sign and reduction of
signage in the City.”
A restriction on commercial speech must reach “no further than necessary to
accomplish the” government’s objective. Metromedia, 453 U.S. at 507. This
“narrow tailoring requirement guards against over-regulation rather than
under-regulation.” Metro Lights, L.L.C. v. City of Los Angeles, 551 F.3d 898, 911
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(9th Cir. 2009). The Supreme Court has held that a complete ban on billboards is
not broader than necessary. Metromedia, 453 U.S. at 508. Therefore, a partial ban
on billboards such as the Sign Ordinance with the Rebuild Provision is not over-
regulation. Metro Lights, 551 F.3d at 911-2; Vanguard Outdoor, LLC v. City of
Los Angeles, 648 F.3d 737, 743 (9th Cir. 2011). Morever, Show Media’s proposed
scheme to replace its competitors’ signs with its own would be less narrowly
tailored to the goal of efficiently reducing billboard blight than the existing
scheme, not more.
II
We have already recognized that the government “has a strong financial
interest in allowing . . . grandfathered billboards to stay” so that it does not “have
to pay just compensation to . . . billboard owners.” Maldonado v. Morales, 556
F.3d 1037, 1048 (9th Cir. 2009). The district court did not err in considering the
City’s interests in avoiding the costs of complying with the Fifth Amendment’s
takings requirements, nor did it err in dismissing as conclusory Show Media’s
monopoly argument with respect to Central Hudson’s narrow tailoring
requirement.
AFFIRMED.
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