Action Outdoor Advert. v. Town of Shalimar, Fla.

• Citation: 377 F.Supp.2d 1178
• Decision Date: 29 March 2005
• Docket Number: No. 3:03CV459/MCR.,3:03CV459/MCR.
• Parties: ACTION OUTDOOR ADVERTISING JV, L.L.C., a Georgia limited liability company, Plaintiff, v. TOWN OF SHALIMAR, FLORIDA, Defendant.
• Court: United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Northern District of Florida

Page 1178

377 F.Supp.2d 1178

ACTION OUTDOOR ADVERTISING JV, L.L.C., a Georgia limited liability company, Plaintiff, v. TOWN OF SHALIMAR, FLORIDA, Defendant.

No. 3:03CV459/MCR.

United States District Court, N.D. Florida, Pensacola Division.

March 29, 2005.

David H. Flint, Mark W. Forsling, Schreeder Wheeler & Flint LLP, Atlanta, GA, Jesse Wendell Rigby, Clark Partington Hart Etc., Pensacola, FL, for Plaintiff.

D Michael Chesser, Chesser & Barr, P.A., Shalimar, FL, Leslie Dean Sheekley, for Defendant.

ORDER

RODGERS, District Judge.

Plaintiff Action Outdoor Advertising JV, L.L.C. ("Plaintiff") sues Defendant Town of Shalimar, Florida, ("Defendant" or "Town") challenging the constitutionality of Defendant's sign ordinance. Presently before the Court are the parties' cross motions for summary judgment¹ (docs. 58; 59 as corrected at 75), along with memoranda and evidentiary materials in support (docs. 60; 61; 64; 67; 70; 72; 73; 87; 88), and the parties' responses in opposition (docs. 77; 78; 79). The Court, having heard oral argument on the motions and having taken summary judgment under advisement (doc. 68), grants Defendant's motion for summary judgment and denies Plaintiff's motion for partial summary judgment.

BACKGROUND

Facts and Procedural History

The following facts are undisputed. Plaintiff is a Georgia limited liability company which is engaged in the business of outdoor advertising. Defendant is a municipality which has a population of about 700 persons. It is approximately one mile by one-half mile in size, with its main commercial area located along a one-mile stretch of Highway 85 known as Eglin Parkway. In the spring of 2003 Plaintiff entered into ground lease agreements with certain landowners in Shalimar to construct and operate signs on their properties along Eglin Parkway. On July 1, 2003, Plaintiff submitted two permit applications to the Town to build one sign on each of the leased properties. The erection of signs in Shalimar is governed by Ordinance No.1999-07, codified at Article XI, Sections 82-316 through 82-370 ("Sign Ordinance") of the Shalimar Code of Ordinances ("Code"). In a letter dated July 9, 2003, the Town's manager, Tom Burns, denied the applications, stating that the proposed signs were billboards within the meaning of Section 82-316 of the Sign Ordinance and that billboards were prohibited in all zoning locations within the town of Shalimar, as set forth in Section 82-352. Plaintiff appealed the denials to the Shalimar Town Commission; at a hearing held September 9, 2003, the Commission denied the appeals.

On October 8, 2003, Plaintiff filed this suit. Invoking the Court's jurisdiction pursuant to 28 U.S.C. §§ 1331, 2201, and 2202, Plaintiff asserts in its seven count "Amended and Restated Petition for Mandamus and Complaint" that certain provisions of Defendant's Sign Ordinance violate the First, Fifth, and/or Fourteenth Amendments of the U.S. Constitution.² (Doc. 31). More particularly, Plaintiff alleges that the total ban on billboards in the Sign Ordinance constitutes an impermissible restriction on commercial speech (Count I); that the absence of permit application response-time limitations in the Sign Ordinance results in an unlawful prior restraint on free speech and violates the right to due process (Count II); that the Sign Ordinance's prohibition of billboards in effect is a total ban on all offsite signs,³ which results in impermissibly favoring commercial speech over noncommercial speech (Count III); that the Sign Ordinance's exemptions from sign or building permit requirements for certain types of signs are content-based and thus the Ordinance unlawfully discriminates between different types of noncommercial speech (Count IV); that the prohibition of all portable signs in the Sign Ordinance is not supported by any expression of governmental interests which further such a ban (Count V); that the Sign Ordinance is a comprehensive scheme which is not severable (Count VI); and that the denial of Plaintiff's sign permit applications under the Sign Ordinance constitutes a taking and inverse condemnation of its property without adequate compensation (Count VII). As relief Plaintiff seeks a declaratory judgment that Defendant's Sign Ordinance is unconstitutional and void in its entirety; additionally, Plaintiff requests a mandatory injunction directing Defendant to issue the two disputed sign permits or, alternatively, a declaratory judgment that Plaintiff may erect its signs without obtaining permits. Plaintiff also demands judgment for damages, attorneys' fees and expenses, and all other costs of this action.

Relevant Provisions of the Shalimar Code of Ordinances

The preamble to Ordinance No.1999-07 in part states that "it is necessary for the town to balance the First Amendment rights, property interests, and rights of free expression of [its] citizens with the potential for confusion, unsafe driving conditions, and the lack of aesthetics presented by some signs and combinations of signs." Additionally, the purpose section of the Sign Ordinance, as set out in Section 82-317, in part provides that

(a) The requirements of this chapter are the minimum requirements to promote the public health, safety, aesthetics and welfare and to maintain, enhance, improve and protect the appearance and character of residential, professional office, commercial, and industrial areas of the town. Additionally, this chapter will improve traffic safety and control the number, location, size and type of signs while still permitting reasonable identification and advertising by professional, commercial and industrial establishments.

* * * * * *

(c).... This article shall not regulate ... the content and message of signs....

Commercial signs are defined in Section 82-316 as signs "related primarily to the economic interests of the owner or lessee of such sign and its readers" while noncommercial signs are those "relating primarily to interests other than to [the] economic interest of the speaker and its audience." Section 82-316 defines a "ground sign" as "a sign supported by uprights, braces, or poles or itself permanently placed in the ground and wholly independent of a building for support and which the subject of the sign relates to either the identifying of the business name or the activity carried on in the structure on the same property as the sign." Section 82-358 sets out height, number, setback, copy area, and ground clearance restrictions for ground signs. Section 82-316 defines a "[b]illboard or billboard sign" as "any sign which provides information of any kind concerning any activity that takes place on property other than that where the sign is located." Section 82-352(4) provides that "[b]illboard signs, regardless of zoning district" are prohibited. Pursuant to Section 82-370 all portable signs also are prohibited.

Section 82-332 provides that all new signs are required to have a permit. Certain signs having no electrical parts or usage are exempt from the sign permit requirement, including political and campaign signs which do not exceed four square feet in copy area. A political sign is defined in Section 82-316 as a "temporary sign identifying and urging vote support for or in opposition to a particular issue, political party or candidate for public office ... which is four square feet or less" in size. A "temporary sign" is one "with intended duration of existence of less than three months and which does not in fact exceed a duration of three months." Id. Section 82-333 states that a building permit must be obtained prior to erecting a sign. Some specified signs are exempt from the building permit requirement, including temporary signs advising of special activities by a nonprofit organization. Pursuant to Section 58-182(b), applications for building permits must be acted upon by an administrative official within two weeks from the date of their submission.⁴

SUMMARY JUDGMENT STANDARD

A motion for summary judgment should be granted when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law." FED.R.CIV.P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). A factual dispute is "`genuine' if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). A fact is "material" if it "might affect the outcome of the suit under the governing [substantive] law." Anderson, 477 U.S. at 248, 106 S.Ct. 2505; Tipton v. Bergrohr GMBH-Siegen, 965 F.2d 994, 998 (11th Cir.1992).

The movant carries the initial burden and must show that there is "an absence of evidence to support the nonmoving party's case." Celotex Corp., 477 U.S. at 325, 106 S.Ct. 2548. "Only when that burden has been met does the burden shift to the nonmoving party to demonstrate that there is indeed a material issue of fact that precludes summary judgment." Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir.1991). The nonmovant is then required "to go beyond the pleadings" and present competent evidence in the form of affidavits, depositions, admissions, and the like, designating "specific facts showing that there is a genuine issue for trial." Celotex Corp., 477 U.S. at 324, 106 S.Ct. 2548. Although evidence presented in opposition to the motion for summary judgment, and all factual inferences arising from it, must be viewed in the light most favorable to the nonmoving party, Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970); Jones v. Cannon, 174 F.3d 1271, 1281 (11th Cir.1999), a general denial unaccompanied by any evidentiary support will not suffice. See, e.g., Courson v. McMillian, 939 F.2d 1479 (11th...