Seay Outdoor Advertising v. City of Mary Esther

• Decision Date: 14 January 2005
• Docket Number: No. 03-15517.,03-15517.
• Citation: 397 F.3d 943
• Parties: SEAY OUTDOOR ADVERTISING, INC., Plaintiff-Appellant, v. CITY OF MARY ESTHER, FLORIDA, John Lulue, as an individual and in his capacity as City Manager, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 943

397 F.3d 943

SEAY OUTDOOR ADVERTISING, INC., Plaintiff-Appellant, v. CITY OF MARY ESTHER, FLORIDA, John Lulue, as an individual and in his capacity as City Manager, et al., Defendants-Appellees.

No. 03-15517.

United States Court of Appeals, Eleventh Circuit.

January 14, 2005.

COPYRIGHT MATERIAL OMITTED

Frank Alfred Baker, Marianna, FL, Edward Adam Webb, E. Adam Webb P.C., Atlanta, GA, for Plaintiff-Appellant.

Dennis P. Dore, Dore, Lanier & Noey, William David Brinton, Rogers, Towers, PA, for Defendants-Appellees.

Matthew Harris Mandel, Susan LaNelle Trevarthen, Weiss, Serota, Helfman, Pastoriza, Guedes, Cole & Boniske, P.A., Fort Lauderdale, FL, for Amicus Curiae.

Appeal from the United States District Court for the Northern District of Florida.

Before EDMONDSON, Chief Judge, and PRYOR and FAY, Circuit Judges.

FAY, Circuit Judge:

In this sign ordinance case, Plaintiff-Appellant Seay Outdoor Advertising, Inc. ("Seay") filed a complaint challenging as unconstitutional the repealed version of an revised local ordinance governing the erection and maintenance of signs in the City of Mary Esther, Florida ("Mary Esther"). Seay's Complaint sought to permanently enjoin enforcement of the repealed ordinance, to compel Mary Esther to grant permits which would allow Seay to erect seven billboards within the city limits, and requested damages, costs, and attorneys' fees. Despite the fact that Mary Esther had repealed the complained of ordinance two months prior to the institution of the suit, Seay's Complaint did not challenge the new version of the sign ordinance. On cross-motions for summary judgment, the district court found certain portions of the challenged ordinance unconstitutional but held those portions severable from the remainder of the ordinance. In so doing, the district court further upheld Mary Esther's ban on billboards. The court also denied Seay's request for damages and motion for attorneys' fees and costs. Seay now appeals. After thorough review, we believe the case is moot and, therefore, nonjusticiable. Accordingly, we reverse the district court's grant of summary judgment and remand with instructions to dismiss for lack of subject matter jurisdiction.

BACKGROUND

The facts in this case are not in dispute. Seay is an outdoor advertising corporation that buys or leases land to construct signs for commercial and noncommercial speech. Mary Esther is a small municipality, approximately two square miles in area with a population of approximately 4,055. Seay contracted with property owners in Mary Esther to construct seven billboards throughout the city. To that end, on June 7, 2001, Seay submitted seven applications for permits to post the signs. The erection of signs in Mary Esther was governed by Article 16 of Mary Esther's Land Development Code (the "Repealed Sign Ordinance"). On that very day, all seven applications were denied solely on the basis of Section 16.00.01(G) of the Repealed Sign Ordinance, which explicitly disallowed billboards. Seay did not appeal these rejections. Instead, Seay engaged the Mary Esther City Attorney in communications in an effort to resolve the matter. In the interim, on November 5, 2001, Mary Esther adopted Ordinance 2001-12 (the "New Sign Ordinance"), which repealed and replaced the Repealed Sign Ordinance, however, the ban on billboards remained intact. Because the ban on billboards remained, Seay did not resubmit its applications.

Seay filed suit against Mary Esther on January 17, 2002, two months following the enactment of the New Sign Ordinance. Interestingly, the Complaint claims only that the Repealed Sign Ordinance is unconstitutional, and does not reference or challenge the New Sign Ordinance. Moreover, although Seay's permits were denied because of the particular provision banning billboards, Seay does not claim that that particular provision is unconstitutional. Rather, Seay claims that the Repealed Sign Ordinance is unconstitutional in its entirety because it violates the First Amendment to, and the Equal Protection Clause of, the United States Constitution and has resulted in an unconstitutional taking. Seay sought a permanent injunction precluding enforcement of the Repealed Sign Ordinance, as well as damages pursuant to 42 U.S.C. § 1983, and costs and attorneys' fees pursuant to 42 U.S.C. § 1988.

Mary Esther moved to dismiss the complaint on, among other things, mootness grounds. The district court denied Mary Esther's motion, finding that the case had not been rendered moot by the New Sign Ordinance. In so holding, the district court applied the voluntary cessation doctrine and stated as its reasoning that Mary Esther had not established that the likelihood of further violations was sufficiently remote to dismiss Seay's complaint as moot. In addition, the Court stated that Seay's potential vested right to the permits may have also been sufficient to defeat Mary Esther's mootness argument.

The parties later filed cross-motions for summary judgment, and although the district court found several provisions of the Repealed Sign Ordinance unconstitutional, it determined that these invalid provisions were severable from the remainder of the Repealed Sign Ordinance. Accordingly, the court denied Seay's motion and granted summary judgment in favor of Mary Esther. The district court further concluded that Seay was not entitled to any damages, costs, or attorneys' fees. Seay now appeals.

DISCUSSION

Mootness is the threshold issue in this case. While neither party raises this issue on appeal, mootness is a jurisdictional question under Article III, which must be raised by the court. See, e.g., C & C Prods., Inc. v. Messick, 700 F.2d 635, 636 (11th Cir.1983). The Article III requirement of a case or controversy is a fundamental aspect of our jurisdiction. If a suit is moot, it cannot present an Article III case or controversy and the federal courts lack subject matter jurisdiction to entertain it. Coral Springs Street Systems, Inc. v. City of Sunrise, 371 F.3d 1320, 1328 (11th Cir.2004) (citing Al Najjar v. Ashcroft, 273 F.3d 1330, 1336 (11th Cir.2001)). Mootness can occur due to a change in circumstances, or, as here, a change in the law. Id."When a subsequent law brings the existing controversy to an end the case becomes moot and should be treated accordingly." Coalition for the Abolition of Marijuana Prohibition v. City of Atlanta, 219 F.3d 1301, 1310 (11th Cir.2000) (citations omitted). Thus, before we decide the legal questions posed by Seay, we raise sua sponte the question whether the New Sign Ordinance renders moot Seay's constitutional challenge to the Repealed Sign Ordinance. In finding this case justiciable, the district court stated that Mary Esther was conceivably free to re-enact the offending provisions of the Repealed Sign Ordinance at any time and that Seay may have acquired vested rights under the former version of the New Sign Ordinance. We disagree.

I.

Because of the possibility that the defendant could simply return to his old ways, "[i]t has long been the rule that voluntary cessation of allegedly illegal conduct does not deprive the tribunal of power to hear and determine the case, i.e., does not make the case moot." Sec'y of Labor v. Burger King Corp., 955 F.2d 681, 684 (11th Cir.1992) (internal quotations omitted). A case may nevertheless be moot if the defendant can demonstrate that (1) "there is no reasonable expectation that the alleged violation will recur," and (2) "interim relief or events have completely and irrevocably eradicated the effects of the alleged violation." County of Los Angeles v. Davis, 440 U.S. 625, 631, 99 S.Ct. 1379, 1383, 59 L.Ed.2d 642 (1979) (citations and internal quotations omitted). "However, governmental entities and officials have been given considerably more leeway than private parties in the presumption that they are unlikely to resume illegal activities." City of Sunrise, 371 F.3d at 1328-29. See also Harrison & Burrowes Bridge Constructors, Inc. v. Cuomo, 981 F.2d 50, 59 (2d Cir.1992) ("Some deference must be accorded to a [legislative body's] representations that certain conduct has been discontinued."); Ragsdale v. Turnock, 841 F.2d 1358, 1365 (7th Cir.1988) ("[C]essation of the allegedly illegal conduct by government officials has been treated with more solicitude by the courts than similar action by private parties.").

Constitutional challenges to statutes are routinely found moot when a statute is amended or repealed. See, e.g., Massachusetts v. Oakes, 491 U.S. 576, 582, 109 S.Ct. 2633, 105 L.Ed.2d 493 (1989); City of Sunrise, 371 F.3d at 1329; Harrison & Burrowes, 981 F.2d at 59. The Supreme Court cautions against holding a challenge to a repealed law moot if the law is reasonably likely to be reenacted or when it is replaced by another constitutionally suspect law.¹ "Likewise, this Court has repeatedly held that the doctrine of voluntary cessation does not apply in cases where challenged laws have been repealed unless there is some reason to believe that the law may be reenacted after dismissal of the suit." City of Sunrise, 371 F.3d at 1329.²

In City of Sunrise, this Court recently addressed similar issues under nearly identical circumstances. In that case, as here, an outdoor advertising company sued a city claiming that the sign code was unconstitutional. Prior to the filing of the suit, as here, the old sign code was replaced by the city with an amended sign code that eliminated most of the constitutionally infirm provisions while continuing to prohibit billboards. The Court held that the doctrine of voluntary cessation did not save the action from being rendered moot by the city's amendment of the code. In so holding, the Court was persuaded that the city would not re-enact the old sign code by counsel for the city's express disavowment at oral argument of any intention of defending the old sign code, and by the city's prompt amendment of the sign code in response...