Kh Outdoor, LLC v. City of Trussville, No. 05-12598.

• Decision Date: 04 August 2006
• Docket Number: No. 05-12598.
• Citation: 458 F.3d 1261
• Parties: KH OUTDOOR, LLC, Plaintiff-Appellee, v. TRUSSVILLE, CITY OF, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

458 F.3d 1261

KH OUTDOOR, LLC, Plaintiff-Appellee, v. TRUSSVILLE, CITY OF, Defendant-Appellant.

No. 05-12598.

United States Court of Appeals, Eleventh Circuit.

August 4, 2006.

J. Bentley Owens, III, Philip G. Piggott, Blake D. Andrews, Starnes & Atchison, LLP, Birmingham, AL, for Defendant-Appellant.

G. Franklin Lemond, Jr., Edward Adam Webb, The Webb Law Group, LLC, Atlanta, GA, for Plaintiff-Appellee.

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

Before DUBINA, MARCUS and PRYOR, Circuit Judges.

MARCUS, Circuit Judge:

The City of Trussville, Alabama, ("the city") appeals the district court's entry of a permanent injunction barring the city from enforcing section 1.0 of the City of Trussville Sign Ordinance ("the ordinance") on First Amendment grounds. After thorough review, we affirm.

I.

The undisputed facts of this case are these. Plaintiff KH Outdoor, LLC, ("KH Outdoor") is in the business of erecting and operating signs used for the dissemination of both commercial and noncommercial speech. KH Outdoor has a history of posting ideological, religious, charitable, and political messages on the signs that it operates and allegedly provides a higher percentage of its advertising space to noncommercial clients at reduced rates than does any other advertising company. Trussville is a fast-growing city in Jefferson County, Alabama.

KH Outdoor submitted eleven applications to the city for permits to construct outdoor advertising signs at various locations in Trussville. The applications did not indicate whether the signs would display commercial or noncommercial messages. The city denied each of the applications pursuant to Section 20.0 of the ordinance, which regulates "billboard signs."¹ Section 20.0 states that billboard signs are permitted only on interstate highways and provides numerous size, lighting, and setback requirements.² Section 2.0 of the same ordinance, which provides definitions for terms used in the other sections, defines a "billboard sign" as "[a]n off-premise sign which directs attention to a business, commodity, service or entertainment, sold or offered for sale at a location other than the premises on which said sign is located." The ordinance prohibits any sign that it does not explicitly allow; section 1.0 provides that "[i]f not otherwise stated, any sign not specifically permitted in a zoning district as provided under the applicable section, shall be prohibited in that district."³ The city denied the applications because KH Outdoor sought to place some billboard signs on roads other than interstate highways and because some of the signs failed to meet the size requirements of section 20.0.

After the city denied the permit applications, KH Outdoor brought suit in the United States District Court for the Northern District of Alabama seeking a preliminary injunction and a permanent injunction to prevent the city from enforcing the ordinance. The complaint leveled various constitutional challenges against nearly every provision of the ordinance. The parties filed cross-motions for summary judgment, both of which the district court granted in part and denied in part. The district court found that the ordinance unconstitutionally favors commercial speech over noncommercial speech for two reasons. First, the district court determined that billboards are the largest signs permitted by the ordinance and that by definition billboards cannot contain noncommercial messages. Thus, noncommercial messages cannot be as large as commercial messages in those areas where billboards are permitted. Second, the district court found that the only provision of the ordinance that allows for political messages at all mandates that those signs be temporary in nature. Because permanent signs are permitted for commercial speech, the trial judge found that the ordinance unconstitutionally favors commercial speech over at least one type of noncommercial speech — political messages.

After determining that the ordinance unconstitutionally discriminates based on the content of speech, the district court permanently enjoined the city from enforcing section 1.0 of the ordinance, which prohibits any sign "not specifically permitted in a zoning district as provided under the applicable section." Essentially, with the district court having prevented the city from enforcing section 1.0 against KH Outdoor, the ordinance no longer contains restrictions that would prohibit erection of a noncommercial billboard.⁴ The city appeals the district court's entry of a permanent injunction against the use of section 1.0, arguing that KH Outdoor does not have standing, and, that even if it does, the ordinance is a constitutional, content-neutral regulation. We review both arguments in turn.

II.

We have jurisdiction to review an interlocutory order granting an injunction pursuant to 28 U.S.C. § 1292(a)(1). See also Alamo Rent-A-Car, Inc. v. Sarasota-Manatee Airport Auth., 825 F.2d 367, 369 n. 2 (11th Cir.1987). We review the district court's order granting an injunction for abuse of discretion. Mut. Serv. Ins. Co. v. Frit Indus., Inc., 358 F.3d 1312, 1324 (11th Cir.2004). However, "[w]e review the district court's findings of fact for clear error, and its application of the law de novo, premised on the understanding that [a]pplication of an improper legal standard . . . is never within a district court's discretion." Solantic, LLC v. City of Neptune Beach, 410 F.3d 1250, 1254 (11th Cir.2005) (internal quotation marks omitted) (second and third alterations in original); see also Major League Baseball v. Crist, 331 F.3d 1177, 1183 (11th Cir. 2003) (noting that while our review of an order granting an injunction is for clear abuse of discretion, "[u]nderlying questions of law" are reviewed de novo).

It is by now axiomatic that a plaintiff must have standing to invoke the jurisdiction of the federal courts. See, e.g., Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 2136, 119 L.Ed.2d 351 (1992). "[T]he irreducible constitutional minimum of standing contains three elements," id., all of which must be satisfied:

First, the plaintiff must have suffered an injury in fact — an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical. Second, there must be a causal connection between the injury and the conduct complained of — the injury has to be fairly ... trace[able] to the challenged action of the defendant, and not ... th[e] result [of] the independent action of some third party not before the court. Third, it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.

Bochese v. Town of Ponce Inlet, 405 F.3d 964, 980 (11th Cir.) (internal quotation marks omitted) (alterations in original), cert. denied, ___ U.S. ___, 126 S.Ct. 377, 163 L.Ed.2d 164 (2005). In addition to the constitutional requirements, there are also prudential standing principles, one of which requires that "a party generally may assert only his or her own rights and cannot raise the claims of third parties not before the court." Granite State Outdoor Adver., Inc. v. City of Clearwater, 351 F.3d 1112, 1116 (11th Cir.2003), cert. denied, 543 U.S. 813, 125 S.Ct. 48, 160 L.Ed.2d 17 (2004).

First Amendment standing analysis may be complicated further by the overbreadth doctrine, which serves as an exception to the prudential principle noted above. Under overbreadth, "a party may bring a First Amendment case asserting the rights of third parties if a statute is constitutionally applied to the litigant but might be unconstitutionally applied to third parties not before the court." CAMP Legal Def. Fund, Inc. v. City of Atlanta, 451 F.3d 1257, 1270-71 (11th Cir. 2006) (internal quotation marks omitted). Significantly, the overbreadth doctrine does not relieve a plaintiff from having to establish constitutional standing; it is simply an exception to one of the prudential requirements. See id. at 1270 (noting that "[t]he overbreadth doctrine does not relieve a plaintiff of the burden to prove constitutional standing"). Indeed, a plaintiff may bring an overbreadth challenge to only those provisions of a law or ordinance that "affect its activities." Id. at 1273. In other words, the overbreadth doctrine does not change the statutes or provisions of an ordinance a plaintiff may challenge; she can only contest those which actually caused her injury. Rather, the overbreadth doctrine simply allows a plaintiff to bring a facial challenge to a provision of law that caused her injury, regardless of whether the provision's regulation of her conduct in particular was constitutional.

The city first argues that KH Outdoor does not have standing to seek an injunction against enforcement of section 1.0 of the ordinance. The city's argument is a simple one. The permits were denied because they failed to comply with the size and location requirements set forth in section 20.0. Therefore, the city argues, KH Outdoor has standing to challenge only section 20.0, and not section 1.0. The city's argument fails because it attempts to read section 20.0 in isolation, divorced from those parts of the ordinance that provide the basic definitional structure for the terms used in section 20.0 and which more generally define the scope of signs allowed by section 20.0.

The parties do not dispute that KH Outdoor has constitutional standing to challenge section 20.0 — indeed, counsel for the city conceded as much at oral argument. KH Outdoor suffered a concrete and actual injury when its permits were denied; plainly, the injury was caused by the city's application of section 20.0 of the ordinance; and the injury undeniably can be redressed by the courts. Thus, KH Outdoor has standing to challenge the provisions found in section 20.0. Moreover, it seems abundantly clear that section 20.0 cannot be read or...