Boulder Sign Co. v. City of Boulder City, Nevada
| Decision Date | 11 August 2005 |
| Docket Number | No. CVS040314PMPRJJ.,CVS040314PMPRJJ. |
| Parties | BOULDER SIGN COMPANY, L.L.C., Plaintiff, v. CITY OF BOULDER CITY, NEVADA, Defendant. |
| Court | U.S. District Court — District of Nevada |
Adam Webb of Webb and Porter, Atlanta GA, Ike Lawrence Epstein of Beckley Singleton, Chtd., Las Vegas, NV, for Plaintiff.
Randal R. Morrison of Sabine and Morrison, San Diego CA, G. Lance Coburn of Lionel Sawyer and Collins, Las Vegas, NV, for Defendant.
Presently before the Court is Defendant Boulder City's Notice of Motion and Motion to Dismiss (Doc. # 4), filed on August 19, 2004. Plaintiff Boulder Sign Company ("Boulder Sign") filed Plaintiff's Response and Memorandum of Points and Authorities in Opposition to Defendant's Motion to Dismiss (Doc. # 8) on September 21, 2004. Defendant filed a Reply Memorandum on Boulder City's Motion to Dismiss (Doc. # 13) on October 12, 2004. This Court ordered the parties to submit supplemental briefings regarding mootness. In response, Plaintiff filed Plaintiff's Brief regarding the Issue of Mootness (Doc. # 29) on January 20, 2005. Defendant filed its Reply to Plaintiff's Brief regarding the Issue of Mootness (Doc. # 30) on January 31, 2005.
Boulder Sign is a limited liability company organized under the laws of the State of Nevada that erects and operates advertising signs. (Compl.¶ 3.) Boulder City is a political subdivision of the State of Nevada. (Id. ¶ 4.) Boulder Sign submitted to Boulder City seven applications for billboard sign permits. (Id. ¶ 10.) The Boulder City Planning Commission denied each of the applications at a public hearing on December 17, 2003. (Id. ¶ 11.) Boulder Sign appealed the denials to the Boulder City Council. (Id. ¶ 12). On January 13, 2004, the Boulder City Council denied the appeal during a public hearing. (Id. ¶ 13.) Boulder Sign alleges that the commission members were concerned that strip clubs, casinos, and other adult uses would be allowed to advertise on the signs. (Id. ¶ 11.)
Boulder Sign filed a Complaint pursuant to 42 U.S.C. § 1983 with this Court on March 16, 2004, seeking damages and injunctive relief against Boulder City. (Id. ¶ 98.) In the Complaint, Boulder Sign alleges that Boulder City violated its First, Fifth, and Fourteenth Amendment rights. (Id. ¶¶ 37-98.) In the Complaint, Boulder Sign challenges the constitutionality of the sign ordinance on the basis of favoring commercial over non-commercial speech, lack of procedural safeguards, impermissible discretion given to city officials, overbreadth, and impermissible regulation of content without justification (Id. ¶¶ 37-76.) Boulder City moves to dismiss this action, arguing this Court lacks subject matter jurisdiction.
Boulder City contends Boulder Sign lacks standing to challenge the sign ordinance. According to Boulder City, the City Council denied Boulder Sign's permit application because the signs would have violated the size, area, and height requirements contained within the City's sign ordinance. Boulder City argues that because size, area, and height requirements are unquestionably constitutional, Boulder Sign lacks standing to challenge any provision of the sign ordinance. Boulder Sign responds that regardless of the City's proffered basis for denying the applications, Boulder City prevented Boulder Sign from erecting its signs in violation of the First Amendment. Boulder Sign argues it, therefore, has suffered an actual injury to its First Amendment rights, and may challenge any provision of the sign ordinance under the overbreadth doctrine.
Article III, § 2 of the federal Constitution requires a as an essential element of jurisdiction of a federal court. Lujan v. Defenders of Wildlife, 504 U.S. 555, 559-60, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). The term standing subsumes a combination of constitutional requirements and prudential principles. Valley Forge Christian Coll. v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 471, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982). The Supreme Court has identified three constitutional requirements for standing: (1) an injury in fact, meaning an injury that is concrete and particularized, and actual or imminent; (2) a causal connection between the injury and the causal conduct; and (3) a likelihood that the injury will be redressed by a favorable decision. Lujan, 504 U.S. at 560-61, 112 S.Ct. 2130. In addition to the constitutional requirement, courts have created certain "prudential requirements...." Bennett v. Spear, 520 U.S. 154, 162, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997). For example, a plaintiff generally must assert his own legal rights and interests, and cannot rest his claim to relief on the legal rights and interests of third parties. Valley Forge Christian College, 454 U.S. at 474, 102 S.Ct. 752.
The Supreme Court has relaxed standing requirements in the First Amendment context, allowing plaintiffs to bring facial constitutional challenges in limited circumstances. According to the overbreadth doctrine, a plaintiff may challenge a statute not based on violation of his own rights, but because a judicial assumption or prediction that the statute's very existence may cause others not before the court from engaging in constitutionally protected expression. City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 799, 104 S.Ct. 2118, 80 L.Ed.2d 772 (1984). However, the overbreadth doctrine serves as an exception only to the prudential standing requirements. 4805 Convoy, Inc. v. City of San Diego, 183 F.3d 1108, 1112 (9th Cir.1999). A plaintiff still must meet the requirements for overbreadth standing: an "injury in fact" as well as the ability to sufficiently frame the issues in the case. Id. An "injury in fact" requires the plaintiff to show that he personally has suffered some actual or threatened injury. Granite State Outdoor Adver., Inc. v. City of Clearwater, Fla., 351 F.3d 1112, 1116 (11th Cir.2003). The exception allows those who have suffered some cognizable injury, but whose conduct is not protected under the First Amendment, to assert the constitutional rights of others. Convoy, 183 F.3d at 1112.
The Eleventh Circuit has held that to assert standing under the overbreadth doctrine, a plaintiff must have suffered an injury pursuant to the specific provision that is at issue. See Granite State Outdoor Adver., 351 F.3d at 1117. The Ninth Circuit has not explicitly adopted the Eleventh Circuit's position. However, district courts within this Circuit have recognized that a plaintiff may have standing to challenge some provisions of a law, but not others. See, e.g., Score LLC v. City of Shoreline, 319 F.Supp.2d 1224, 1230 (W.D.Wash.2004).
In Score LLC, the plaintiff challenged a municipal code which required adult cabarets to obtain an adult cabaret license, a provision banning simulated sexual conduct, and a provision that imposed operator liability for violations. See id. at 1227. The defendants filed a motion for summary judgment seeking dismissal of the plaintiff's complaint. Id. The court partially denied the motion for summary judgment. Id. at 1237. In doing so, the court found the plaintiff had standing to challenge two of the three provisions at issue under the overbreadth doctrine. See id. at 1230-33. With respect to the ordinance regarding licensing, the court found that the plaintiff could assert standing. Id. at 1230. The court noted that the plaintiff established injury in fact because the plaintiff was subject to the license renewal provisions. Id. The plaintiff further established that it intends to seek renewal of the annual license once it expired. Id.
The court next determined that the plaintiff had standing to challenge the ban on simulated sex on the ground that the ordinance was unconstitutional as to entertainers and employees. Id. at 1232. In doing so, the court found that the plaintiff established injury in fact by facing the risk that its employees and entertainers will engage in self-censorship, which could affect its business. Id. at 1231.
Finally, the court found that the plaintiff did not have standing to challenge a provision regarding operator liability. Id. at 1232-33. The plaintiff argued it had standing to challenge the provision because it had previously suffered under a similar provision and there is reason to believe that the city would seek to punish the plaintiff again. Id. at 1232. The court rejected this argument, noting that the plaintiff never suffered injury pursuant to the challenged provision. Id. at 1232.
Here, Boulder Sign sufficiently has alleged the requisite injury in fact. Boulder Sign applied for, and was denied, several sign permits. Boulder Sign's Complaint alleged that the Planning Commission had broad discretion to approve Boulder Sign's applications, regardless of the size and height restrictions generally imposed on signs. The Complaint further alleges that several provisions within the sign ordinance, including §§ 11-24-7(B), and 11-24-6(C)(1),(4), contains constitutional deficiencies regarding the discretion of Boulder City with respect to appeals of denials, as well as the lack of constraints on time to approve or deny permit applications. The Complaint also alleged that the provisions' numerous content based restrictions regulated more speech than could be justified by any legitimate governmental objectives. Boulder City argues that a videotape of the Boulder City Council meeting dated January 17, 2004 would show that the Council denied the application for constitutionally sound reasons. However, the Court is obliged to accept Boulder Sign's allegations as true at this stage of litigation. Because Boulder Sign was not allowed to obtain a permit to construct billboards pursuant to the sign ordinance, it has suffered an injury in fact. Boulder Sign therefore has standing to...
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