Adams Outdoor Adver. Ltd. v. Pa. Dep't of Transp., 18-2409

• Decision Date: 15 July 2019
• Docket Number: No. 18-2409,18-2409
• Parties: ADAMS OUTDOOR ADVERTISING LIMITED PARTNERSHIP, a Limited Partnership Organized Under the Laws of the State of Minnesota, BY its Managing General Partner, ADAMS OUTDOOR GP, LLC, Appellant v. PENNSYLVANIA DEPARTMENT OF TRANSPORTATION; Leslie Richards, Individually and in her capacity as Secretary of Transportation, Acting as the Chief Executive Officer of the Pennsylvania Department of Transportation
• Court: U.S. Court of Appeals — Third Circuit

930 F.3d 199

ADAMS OUTDOOR ADVERTISING LIMITED PARTNERSHIP, a Limited Partnership Organized Under the Laws of the State of Minnesota, BY its Managing General Partner, ADAMS OUTDOOR GP, LLC, Appellant

v.PENNSYLVANIA DEPARTMENT OF TRANSPORTATION; Leslie Richards, Individually and in her capacity as Secretary of Transportation, Acting as the Chief Executive Officer of the Pennsylvania Department of Transportation

No. 18-2409

United States Court of Appeals, Third Circuit.

Argued March 5, 2019

Opinion filed: July 15, 2019

Victor F. Cavacini (Argued), Gross McGinley, 33 South 7th Street, P.O. Box 4060, Allentown, PA 18105, Counsel for Appellant

Josh Shapiro, Attorney General, Claudia M. Tesoro (Argued), Senior Deputy Attorney General, J. Bart DeLone, Chief Deputy Attorney General, Office of Attorney General, 1600 Arch Street, Suite 300, Philadelphia, PA 19103, Counsel for Appellee

Before: SMITH, Chief Judge, AMBRO, and RESTREPO, Circuit Judges

OPINION OF THE COURT

AMBRO, Circuit Judge Adams Outdoor Advertising, L.P., wants to install a billboard near an interchange on U.S. Route 22 in Hanover Township, Pennsylvania. Adams sought a permit from the Pennsylvania Department of Transportation ("PennDOT"), but it denied the permit under a provision of Pennsylvania law that prohibits "off premise" billboards within 500 feet of a highway interchange. Adams contends that provision—called the "Interchange Prohibition"—violates the First Amendment because it is too vague or, alternatively, because it does not survive First Amendment scrutiny. Adams also claims that PennDOT’s permitting requirement for highway billboards separately violates the First Amendment because there is no time limit for its decisions on applications.

The District Court ruled in Adams’ favor on the time-limit claim and entered an injunction barring the enforcement of the permit requirement until PennDOT establishes reasonable time limits on its permit decisions. It dismissed, however, Adams’ vagueness challenge on the pleadings and entered summary judgment against Adams on its First Amendment scrutiny challenge.

We affirm in part and reverse in part. As to the former, we join the District Court in concluding that PennDOT’s permit requirement violates the First Amendment because it lacks a reasonable time limit for permit determinations, and thus sustain the injunction. Further, we affirm the Court’s dismissal of Adams’ vagueness challenge because the Interchange Prohibition communicates clearly what it prohibits. But we cannot sustain its entry of summary judgment in favor of PennDOT Secretary Richards on Adams’ challenge to the scrutiny required to assess the Interchange Prohibition. Although we conclude the Prohibition is not subject to strict scrutiny, the record is insufficient to establish the required reasoning for the prohibition. We thus reverse on that claim and remand for further proceedings.

I. Background

A. Statutory Background

The Highway Beautification Act of 1965, 23 U.S.C. § 131, establishes a framework for federal–state agreements governing the size, lighting, and spacing of outdoor advertising signs (colloquially, "billboards") near highways. States that do not enter into and comply with their federal–state agreements under the Beautification Act lose certain funds for highway programs. See 23 U.S.C. § 131(b).

Pennsylvania meets its obligations under the Beautification Act through the Pennsylvania Outdoor Advertising Control Act of 1971, 36 Pa. Stat. §§ 2718.101–.115. PennDOT administers the Act through its Secretary, defendant-appellee Leslie Richards. 36 Pa. Stat. § 2718.106.

Two aspects of the Act are relevant in this appeal. First, its Interchange Prohibition bars the installation of any billboard within 500 feet of an "interchange" or "safety rest area" unless the billboard is an "official" or "on premise" sign as defined in 23 U.S.C. § 131(c). See 36 Pa. Stat. § 2718.105(c)(2)(i), (iv). Second, the Act sets up a permitting regime requiring persons to obtain permits from either PennDOT or a PennDOT-authorized entity to install billboards regulated by the former. See 36 Pa. Stat. § 2718.107. The Act does not establish a time limit to decide permit applications.

B. Facts and Procedural History

Adams is a company that acquires or leases private land to install and maintain outdoor advertising signs as a medium of communication by the public. It receives the customer’s desired message, secures permits, and installs the message on a sign. All the signs Adams installs are "off premise" signs—that is, they communicate a message concerning neither the specific property where the sign is displayed nor the business or activities that occur there. An example of an "off premise" sign would be one advertising a law firm, a political campaign, or any other business or organization that does not operate on the location where the sign is installed.

In March 2016 Adams applied to PennDOT for a permit to install a billboard alongside U.S. Route 22 in Hanover Township. The application remained pending for more than a year. During that time Adams filed this lawsuit, which prompted PennDOT to act. It denied the application because the billboard’s proposed location was less than 500 feet from a highway interchange in violation of the Interchange Prohibition.

Adams named both Secretary Richards and PennDOT as defendants, but PennDOT was dismissed early in the proceedings. Adams does not challenge that dismissal on appeal. The Complaint alleges six claims under the First Amendment, three of which are relevant here: the Interchange Prohibition violates the First Amendment because (1) it is too vague, (2) it is a content-based regulation that on its face cannot survive the scrutiny called for by the Amendment, and (3) its permitting requirement does not impose a time limit on PennDOT to rule on applications.

The District Court dismissed the vagueness challenge on the pleadings. Adams Outdoor Advert. Ltd. P’ship v. Pa. Dep’t of Transp. , 307 F. Supp. 3d 380, 390–93 (E.D. Pa. 2018). It also denied the motion to reconsider that dismissal. Adams Outdoor Advert. Ltd. P’ship v. Pa. Dep’t of Transp. , 321 F. Supp. 3d 526, 534–35 (E.D. Pa. 2018). The other two claims went through discovery. The Court then granted summary judgment for Secretary Richards on the First Amendment scrutiny challenge to the Interchange Prohibition. Id. at 535–39. But it granted summary judgment for Adams on the permit challenge and issued an injunction prohibiting PennDOT from enforcing the Act’s permitting requirement until it issues rules establishing time constraints for its decisions on applications. Id. at 541–45.

On appeal, Adams challenges the District Court’s resolution on all three of these claims. Although Adams won summary judgment on the last issue, it contends the proper relief is an injunction compelling the Pennsylvania General Assembly to amend the Act. Secretary Richards contends the District Court should not have entered an injunction at all, though she did not appeal the District Court’s decision granting it and acknowledged at oral argument that she is not challenging it.

II. Jurisdiction and Standard of Review

The District Court had jurisdiction under 28 U.S.C. § 1331. We have jurisdiction under 28 U.S.C. § 1291 and review de novo its orders granting summary judgment and granting Secretary Richards’ motion to dismiss for failure to state a claim. Dwyer v. Cappell , 762 F.3d 275, 279 (3d Cir. 2014) ; Vorchheimer v. Phila. Owners Ass’n , 903 F.3d 100, 105 (3d Cir. 2018). We review the District Court’s "fashioning of a remedy according to an abuse of discretion standard." Anderson v. Davila , 125 F.3d 148, 159 (3d Cir. 1997).

III. Discussion

A. Vagueness Challenge

Our Supreme Court has identified two grounds on which to hold a statute impermissibly vague. "First, if it fails to provide people of ordinary intelligence a reasonable opportunity to understand what conduct it prohibits." Hill v. Colorado , 530 U.S. 703, 732, 120 S.Ct. 2480, 147 L.Ed.2d 597 (2000). "Second, if it authorizes or even encourages arbitrary and discriminatory enforcement." Id.

We join the District Court in concluding that Adams failed to allege either form of vagueness. The Interchange Prohibition clearly conveys what it prohibits. It bans the installation of billboards within 500 feet of either side of an interchange on a divided highway, other than "official" or "on premise" billboards, as defined by federal law. Official signs are "[d]irectional or other official signs or notices erected and maintained by public officers or agencies ... for the purpose of carrying out an official duty or responsibility." 23 C.F.R. § 750.105(a) (incorporated into the Interchange Prohibition by reference, see 36 Pa. Stat. § 2718.105(c)(2)(iv), 23 U.S.C. § 131(c) ). On-premise signs are those that "advertise the sale or lease of, or activities being conducted upon, the real property where the signs are located." 23 C.F.R. § 750.105(a) (incorporated into the Interchange Prohibition by reference, see 36 Pa. Stat. § 2718.105(c)(2)(iv), 23 U.S.C. § 131(c) ). The Prohibition is clear enough that a person of ordinary intelligence would "understand what conduct it prohibits." Hill , 530 U.S. at 732, 120 S.Ct. 2480. The provision also does not give PennDOT authorization to enforce arbitrarily or in a discriminatory way. When construing the provision, its discretion is cabined by explicit distance measurements, and Adams does not allege any facts suggesting PennDOT applies those metrics in an arbitrary or discriminatory manner.

Adams instead complains that PennDOT’s interpretation of its 500-foot radius has changed a few times since the provision’s enactment in 1971. At times between 1971 and 1997, PennDOT construed the provision’s 500-foot radius to extend from highway interchanges on only one side of a divided highway. That position altered in 1997, when PennDOT issued a guidance letter (the "1997 Strike-Off Letter") establishing its...