Bill Salter Advertising v. City of Brewton, Ala.

• Decision Date: 26 April 2007
• Docket Number: Civil Action No. 07-0081-WS-B.
• Citation: 486 F.Supp.2d 1314
• Parties: BILL SALTER ADVERTISING, INC., Plaintiff, v. CITY OF BREWTON, ALABAMA, Defendant.
• Court: U.S. District Court — Southern District of Alabama

486 F.Supp.2d 1314

BILL SALTER ADVERTISING, INC., Plaintiff, v. CITY OF BREWTON, ALABAMA, Defendant.

Civil Action No. 07-0081-WS-B.

United States District Court, S.D. Alabama, Southern Division.

April 26, 2007.

COPYRIGHT MATERIAL OMITTED

Edward Adam Webb, Atlanta, GA, for Plaintiff.

Hansel Eli Lightner, II, J. Bently Owens, III, James Bentley Owens, III, Philip Guy Piggott, Starnes & Atchison, LLP, Birmingham, AL, W. Christian Hines, III, Starnes & Atchison LLP, Mobile, AL, for Defendant.

ORDER

STEELE, District Judge.

This matter comes before the Court on Plaintiffs Motion for Preliminary Injunction (doc. 6) and defendant's Motion to Stay Consideration of Plaintiff's Motion for Preliminary Injunction (doc. 11).¹

I. Background.

In September 2004, Hurricane Ivan made landfall on the Gulf Coast, leaving a trail of devastation in its wake. Among the casualties of this historic weather event were four outdoor advertising signs owned by plaintiff, Bill Salter Advertising, Inc. ("Salter"), within the police jurisdiction of defendant, City of Brewton, Alabama (the "City"). These billboards sustained significant wind damage in the storm. In the aftermath of the hurricane, the City, citing concerns for public safety (in that future storms might cause sign faces to become airborne, endangering pedestrians and motorists alike) and the concomitant need to revisit technical aspects of its sign ordinance ("Ordinance") such as wind load, imposed a temporary moratorium on the construction or rebuilding of billboards within the City on June 28, 2005, while these safety considerations were studied.² All indications in the parties' filings are that this ostensibly temporary moratorium remains in place today, some 22 months after it was first imposed, and that the City has not enacted a new sign ordinance to address the safety concerns that animated the moratorium in the first place.³

In July 2006, Salter submitted application packages to the City seeking permits to erect nine new billboards in the City's police jurisdiction. The next month, a City official orally notified Salter that all nine applications were being denied because of the moratorium "until the new sign ordinance is in place." (McCurdy Decl., ¶ 10.) A follow-up letter from the City to Salter explained that the applications had been denied because "Brewton's Sign Ordinance presently in effect prohibits the issuance of permits for new Off-Premise signs of [sic] billboards." (Id., ¶ 11 & Exh. A.)⁴ Within weeks, Salter submitted applications for administrative appeal/variance with respect to each of the denied applications. In response, the City notified Salter of certain information and fees that were necessary for the appeal/variance requests to proceed. Although Salter contends that the need for much of this information was not specified in the Ordinance or any other applicable regulation, and that the process was both expensive and onerous, it submitted the requisite information and fees in November 2006. Two months later, on January 22, 2007, at a hearing, the City's Board of Zoning Adjustment denied Salter's appeal/variance requests.

On February 2, 2007, Salter initiated this action by filing the Complaint (doc. 1) against the City alleging various constitutional deprivations. In particular, sounding in 42 U.S.C. § 1983 and the Alabama Constitution, the Complaint alleges that the City's purportedly temporary moratorium on all signs requiring a permit is unconstitutional under the First Amendment; that the City violated Salter's procedural and substantive due process rights in delaying and otherwise obstructing Salter's attempts to repair hurricane-damaged signs; that the City's sign ordinance violates the First Amendment because its permitting requirement is an invalid prior restraint that fails to contain minimum procedural safeguards, it affords the City virtually unfettered discretion in determining whether or not to issue a permit, it includes content-based restrictions that impermissibly favor commercial speech over noncommercial speech, it does not directly advance a substantial government interest in a material way and is not narrowly tailored to support the governmental interests asserted, and it unduly burdens the freedom of citizens and property holders to speak; and that the City's sign ordinance violates the Fourteenth Amendment by denying Salter equal protection under the law in favoring certain entities' speech at the expense of others'. In its Complaint, Salter seeks multiple forms of relief, including monetary damages and an injunction prohibiting the City from enforcing the moratorium and the Ordinance.⁵

On February 22, 2007, some three weeks after filing its Complaint, Salter filed its Motion for Preliminary Injunction, requesting that the City be preliminarily enjoined from (a) "misinterpreting its Sign Ordinance to preclude all new outdoor advertising signs" and (b) "enforcing its Sign Ordinance and Moratorium." (Motion, at 2.) With its 31-page memorandum of law (exceeding, without leave, the 30-page maximum prescribed by Local Rule 7.1(b)), its supporting affidavits and exhibits, and its thicket of potentially far-reaching legal arguments, this Motion bears a striking resemblance to a summary judgment motion, rather than an emergency motion for preliminary relief under Rule 65 until such time as a final determination on the merits can be made. Despite its rather unorthodox procedural posture, the Motion for Preliminary Injunction has now been briefed and is ripe for disposition.⁶

II. Defendant's Motion to Stay.

Antecedent to considering the Motion for Preliminary Injunction, the Court will take up the City's Motion to Stay Consideration of Plaintiffs Motion for Preliminary Injunction (doc. 11). In that Motion, the City accuses Salter of setting an "evidentiary trap" by attempting to force the City to defend itself against a Rule 65 motion despite a "virtually barren" evidentiary record in which neither initial disclosures nor formal discovery have taken place. (Doc. 11, at 2.)⁷ According to the Motion, the City is at a strategic disadvantage because it has not been able to conduct any discovery and therefore cannot sufficiently and adequately respond to the Motion for Preliminary Injunction without conducting, at a minimum, the following discovery: (i) the depositions of all individuals listed in Salter's nine billboard applications, (ii) the depositions of the two declarants who offered declarations in support of the Motion for Preliminary Injunction, (iii) production of all of Salter's documents pertaining to their applications, and (iv) a Rule 30(b)(6) deposition of Salter. (Id. at 6.) The City therefore asks that plaintiffs Motion for Preliminary Injunction be stayed until such time as this sweeping "preliminary" discovery has been conducted.

Although the City argues that there are "significant factual ... issues that need to be addressed" before the Rule 65 Motion may be decided, it does so in conclusory terms, largely omitting identification or explanation of what those factual issues are and why they are germane to Salter's request for a preliminary injunction. (Motion to Stay, at 6.) At best, defendant justifies its request for extensive preliminary discovery (which would almost certainly contemplate both considerable expense to the parties and considerable delay to these proceedings) by stating that it needs to inquire fully into the circumstances surrounding the submission of the billboard applications, that it requires discovery on the question of irreparable harm, and that factual investigation is needed to determine whether Salter has any genuine interest in noncommercial speech for purposes of standing. The City cites no authority that has allowed such wide-ranging discovery as a prerequisite to ruling on a motion for preliminary injunction in a First Amendment billboard case. More importantly, the City's position overlooks the fact that Salter's Motion for Preliminary Injunction turns on pure questions of law relating to a predominantly facial challenge to the Ordinance's constitutionality, as to which no preliminary discovery is reasonably necessary. See, e.g., Solantic, LLC v. City of Neptune Beach, 410 F.3d 1250, 1274 (11th Cir.2005) (observing in First Amendment sign ordinance case that the plaintiffs claims raised purely legal questions as its constitutional challenge to that ordinance was "facial rather than as applied, so that our resolution of the legal questions is only minimally intertwined with the facts"); Gold Coast Publications, Inc. v. Corrigan, 42 F.3d 1336, 1343 (11th Cir.1994) ("the issuance of a preliminary injunction in the context of free speech turns solely on whether the challenged ordinance violates the First Amendment") (citation omitted).

The topics on which the City professes to have need for preliminary discovery do not have any apparent bearing on whether the Ordinance is constitutional or unconstitutional. To be sure, the question of irreparable harm is in play for Salter's Rule 65 Motion; however, as explained in Section III.D.2., infra, the irreparable harm element is satisfied as a matter of law in this context, without the need for factual examination as to how Salter has been harmed by the denial of the permits. Moreover, while the court appreciates the City's position on Salter's standing, particularly as to aspects of the Ordinance which were not used as a basis for denying the permit requests, no discovery is needed here before a preliminary determination as to standing may be made. As to aspects of the Ordinance not used as a basis for denying the permit applications, the question of standing is purely legal and no discovery is needed. (See Section III.F.4., infra.) As to Salter's standing to challenge stated bases for denying the applications, it is uncontroverted that Salter did submit nine permit applications for new signs and that the City denied both those...