Clear Channel Outdoor, Inc. v. Mayor & City Council of Balt.
| Decision Date | 19 May 2014 |
| Docket Number | Civil Action No. GLR–13–2379. |
| Citation | 22 F.Supp.3d 519 |
| Parties | CLEAR CHANNEL OUTDOOR, INC., Plaintiff, v. MAYOR AND CITY COUNCIL OF BALTIMORE, Defendant. |
| Court | U.S. District Court — District of Maryland |
Benjamin Rosenberg, Elizabeth Moody Shaner, Rosenberg Martin Greenberg LLP, Baltimore, MD, Danielle J. Carter, Gordon D. Todd, Joseph R. Guerra, Sidley Austin LLP, Washington, DC, for Plaintiff.
Steven John Potter, Baltimore City Department of Law, Baltimore, MD, for Defendant.
This constitutional challenge arises from a municipal charge Defendant Mayor and City Council of Baltimore (the “City”) imposes on outdoor advertising displays. Plaintiff Clear Channel Outdoor, Inc. (“Clear Channel”), an outdoor media company, alleges the ordinance imposing the charge impermissibly regulates commercial speech in violation of the First and Fourteenth Amendments to the United States Constitution. Currently pending before the Court is the City's Motion to Dismiss the Complaint under Federal Rule of Civil Procedure 12(b) for lack of subject matter jurisdiction and failure to state a claim. (ECF No. 15). Also pending is Clear Channel's Motion for Leave to File Surreply to the City's Motion to Dismiss. (ECF No. 18).
Principally at issue is (1) whether the charge constitutes a tax under the Tax Injunction Act (the “TIA”), 28 U.S.C. § 1341 (2012), and (2) whether charging outdoor advertising displays directly advances the government's interests in traffic safety and aesthetics as required by the First Amendment. The Court, having reviewed the pleadings and supporting documents, finds no hearing necessary. See Local Rule 105.6 (D.Md.2011).
For the reasons outlined more fully below, the Court will deny both Motions on the grounds that, at least at this stage of the litigation, the ordinance is a fee, not a tax, for the purposes of the TIA. Next, regarding the First Amendment issue, there is a question as to whether charging displays directly advances the government's interests in traffic safety and aesthetics. Finally, the City raises no novel issue in its pleadings demanding a surreply.
On June 17, 2013, the City Council of Baltimore passed Ordinance 13–139 levying select outdoor advertising displays in the City. Balt., Md., Ordinance 13–139 (Jun. 17, 2013) (codified as amended at Balt., Md., Code art. 28 §§ 29 et seq. (2014)). The Mayor of Baltimore signed the ordinance into law on June 20, 2013, and it went into effect thirty days later. Id. § 29–14. The ordinance recitals explain that “[t]he unregulated display of outdoor advertising” is a public nuisance that “harm[s] the health, safety, convenience, and welfare of” City residents. Id. at 1:21–23. They declare that “outdoor advertising endangers public safety by distracting the attention of drivers from the roadway,” and “harm[s] the City by creating visible clutter and blight ... in a way that reduces the City's ability to collect revenue from other sources.” Id. at 2:1–6. By enacting the ordinance and imposing the charge, the City hoped to “properly allocat[e] the potential economic burdens caused by the outdoor advertising while reducing these harms.” Id. at 2:7–9.
With that purpose, Ordinance 13–139 imposes a $15–per–square–foot charge on electronic displays that change images more than once a day. Id. § 29–3(A)(1). For all other displays, the ordinance imposes a $5–per–square–foot charge. Id. § 29–3(A)(2). “Outdoor advertising displays” include:
The “advertising host,” whom the ordinance defines as the person who owns or operates the display and charges a fee for its use, is responsible for paying the $15– and $5–charges. Id. §§ 29–1(B), 29–5. Payments are due annually when the advertising host files a report detailing the number of displays he operates. Id. § 29–5(B).
But the charge is not universal. Because government entities are excluded from the definition of a “person,” they are not considered “advertising hosts,” and thus their outdoor advertising displays are not charged. Id. § 29–1(E)(2). Nor does the ordinance charge so-called “onsite” displays—displays that promote a business, commodity, service, event, or other activity conducted on the premises upon which the display appears. See id. § 29–1(D).
Though the recitals insist outdoor advertising is “a separate and distinct type of activity,” id. at 1:18, Ordinance 13–139 supplements a series of existing City zoning laws that regulate advertising signs. The zoning laws prohibit general advertising signs altogether in non-commercial areas, and in certain business and industrial areas. Balt., Md., Zoning Code §§ 11–2A06, 11–306, 11–406 (2014). Where general advertising signs are permitted, they are subject to numerous restrictions.2 They may not, for example, have “any flashing, blinking, fluctuating, or otherwise animated light,” be placed on a roof, or “extend above the roof line of a building to which [they are] attached.” Id. §§ 11–405(a), 11–407, 11–408. The zoning laws also make clear that no sign may constitute a traffic hazard, and that the City may relocate or remove any sign it deems to be one.Id. § 11–205. Lastly, the City has prohibited the construction of new general advertising signs for more than the last decade. Id. § 11–206.
This is the context within which Clear Channel brings suit. Clear Channel owns and operates several hundred outdoor advertising displays in the City, some of which are electronic with images that change more than once a day. Others are nonelectronic. All of them, however, are “offsite” displays: They promote businesses, commodities, services, events, and other activities that do not occur on the premises where the display appears. Moreover, Clear Channel's displays often carry a variety of messages.
Under Ordinance 13–139, Clear Channel, which owns and operates approximately ninety-five percent of the City's non-governmental outdoor advertising displays, alleges it will owe $1.5 million annually for its displays. Clear Channel also alleges it is one of four non-governmental entities that own or control outdoor advertising displays in the City, and that it alone will be responsible for ninety percent of the assessments collected under the ordinance.
On August 14, 2013, Clear Channel sued the City in this Court under 42 U.S.C. § 1983 alleging Ordinance 13–139 violates the First Amendment, applicable to the City through the Fourteenth Amendment. (ECF No. 1). Clear Channel seeks a declaratory judgment that Ordinance 13–139 is unconstitutional and an order enjoining the City from enforcing it. The City moved to dismiss the action on September 19, 2013. (ECF No. 15). After both parties fully briefed the City's Motion to Dismiss, Clear Channel requested leave to file a surreply. (ECF No. 18). The Court will address both motions below.
A Federal Rule of Civil Procedure 12(b)(1) motion to dismiss for lack of subject matter jurisdiction questions “whether the court has the competence or authority to hear the case.” Davis v. Thompson, 367 F.Supp.2d 792, 799 (D.Md.2005). When raised, the plaintiff bears the burden of proving subject matter jurisdiction exists by preponderance of evidence. See Evans v. B.F. Perkins Co., 166 F.3d 642, 647 (4th Cir.1999).
Here, the City invokes a facial challenge, asserting that the allegations pled in the complaint are insufficient to establish subject matter jurisdiction. See Kerns v. United States, 585 F.3d 187, 192 (4th Cir.2009). In a facial challenge, “the facts alleged in the complaint are taken as true, and the motion must be denied if the complaint alleges sufficient facts to invoke subject matter jurisdiction.” Id.
To survive a Federal Rule of Civil Procedure 12(b)(6) motion, the complaint must allege enough facts to state a plausible claim for relief. Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). A claim is plausible when “the plaintiff pleads factual content that allows the Court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556, 127 S.Ct. 1955 ). Legal conclusions or conclusory statements do not suffice and are not entitled to the assumption of truth. Id. (citing Twombly, 550 U.S. at 555, 127 S.Ct. 1955 ).
Thus, the Court “must determine whether it is plausible that the factual allegations in the complaint are enough to raise a right to relief above the speculative level.”Monroe v. City of Charlottesville, 579 F.3d 380, 386 (4th Cir.2009) (quoting Andrew v. Clark, 561 F.3d 261, 266 (4th Cir.2009) ) (internal quotation marks omitted). And in doing so, the Court must examine the complaint as a whole, consider the factual allegations in the complaint as true, and construe the factual allegations in the light most favorable to the plaintiff. Albright v. Oliver, 510 U.S. 266, 268, 114 S.Ct. 807, 127 L.Ed.2d 114 (1994) ; Lambeth v. Bd. of Comm'rs of Davidson Cnty., 407 F.3d 266, 268 (4th Cir.2005) (citing Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974) ).
The Court's jurisdiction hangs on whether, for the purposes of the TIA, Ordinance 13–139 imposes a tax or a fee. The TIA prohibits federal district courts from interfering with the collection of state taxes where a speedy and efficient remedy exists in state court. 28 U.S.C. § 1341....
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Clear Channel Outdoor, Inc. v. Mayor
...22 F.Supp.3d 519CLEAR CHANNEL OUTDOOR, INC., Plaintiff,v.MAYOR AND CITY COUNCIL OF BALTIMORE, Defendant.Civil Action No. GLR–13–2379.United States District Court, D. Maryland.Signed May 19, Motions denied. [22 F.Supp.3d 522] Benjamin Rosenberg, Elizabeth Moody Shaner, Rosenberg Martin Green......