EB Elliott Adv. Co. v. Metropolitan Dade County

Decision Date29 April 1970
Docket NumberNo. 27589.,27589.
Citation425 F.2d 1141
PartiesE. B. ELLIOTT ADV. CO. et al., Plaintiffs-Appellants, Henry F. Hill, Intervenor-Appellant, v. METROPOLITAN DADE COUNTY, a political subdivision of the State of Florida, Defendant-Appellee.
CourtU.S. Court of Appeals — Fifth Circuit

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Kenneth L. Ryskamp, Miami, Fla., Chester Bedell, Jacksonville, Fla., Copeland, Therrel, Baisden & Peterson, Fred R. Stanton, Miami Beach, Fla., for appellants.

Thomas C. Britton, County Atty., St. Julien P. Rosemond, Asst. County Atty., Miami, Fla., for appellee.

Before JOHN R. BROWN, Chief Judge, and TUTTLE and MORGAN, Circuit Judges.

LEWIS R. MORGAN, Circuit Judge:

This is a consolidated class action seeking a declaratory judgment that Dade County Ordinance No. 63-26, as amended (1968), Code of Metropolitan Dade County, § 33-121.10-17, dealing with the erection and maintenance of outdoor advertising signs adjacent to all expressways in Dade County, is unconstitutional. The District Court for the Southern District of Florida held that the ordinance bears a rational relationship to the constitutionally permissible objectives of safety, aesthetics and economic welfare and does not prescribe the taking of property without just compensation or due process of law, nor constitutes a denial of the equal protection of the law.

Ordinance No. 63-26, enacted on July 2, 1963, establishes "protected areas", which include all property within 600 feet of the right-of-way of all expressways in Dade County, and prohibits all commercial outdoor advertising signs within the "protected areas", subject to a number of exceptions.1 "Temporary signs", such as signs advertising the property on which they are located to be for sale or

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rent; signs advertising a subdivision of the property; signs advertising construction actually being done on the premises or future construction; or signs advertising special events or political campaigns, are generally allowed if oriented to serve streets other than expressways and located more than 100 feet from the expressway right-of-way. However, "temporary signs" may be oriented to and serve an expressway if the property abuts on the expressway and is neither served by a parallel service road nor has a direct permanent legal access to the expressway. "Point of sale" signs, that is, signs "advertising or designating the use, occupant of premises, or merchandise or products sold on the premises", are allowed if they are directed and oriented to the street which provides access to the premises and meet certain other requirements. A provision limiting the contents of a "point of sale" sign located within 200 feet of an expressway right-of-way to the name of the shopping center or the name and type of business or profession of the occupant of the premises and a provision limiting the size of "point of sale" signs within the 200-foot limit to 80 square feet were deleted on March 5, 1968. Dade County Ordinance No. 68-15, § 1. All other commercial outdoor advertising signs visible from an expressway are prohibited within 200 feet of an expressway right-of-way, and, while allowed within the 600-foot protected area if beyond the 200-foot limit, they must not be erected for the purpose of serving an expressway and must be oriented so as to serve only streets other than expressways and meet other requirements as to size, zoning regulations, construction and spacing. The ordinance further provides that nonconforming signs may continue to be maintained until March 1, 1968, thus providing an amortization period of five years. Violations of the ordinance are punishable by a fine not to exceed $500.00 or by imprisonment not to exceed sixty days, or both, and it is enforceable by way of injunction. The ordinance specifically provides that no variances shall be granted from its requirements under existing zoning procedures.

The net effect of Ordinance No. 63-26 is to prohibit all commercial outdoor advertising signs oriented to and serving any expressway in Dade County. While no commercial outdoor advertising sign, that is, any sign not coming within the classification of a "temporary sign" or a "point of sale sign", can be erected within 200 feet of an expressway right-of-way, "point of sale signs" and "temporary signs" may be erected within the 200-foot limit. Further, while a "point of sale sign" must be oriented to a street which provides access to a place of business, it may be used to advertise any product sold there, and if it is also visible from an expressway, it may thus indirectly serve the expressway.

The plaintiffs-appellants, E. B. Elliott Advertising Company, Outdoor Media, Inc., Donnelly Advertising Corporation of Florida, and Webster Outdoor Advertising Company, representing a class consisting of all persons who are in the outdoor advertising business or who own or lease outdoor advertising facilities in Dade County, Florida, contend that Ordinance No. 63-26 is invalid because: (1) it purports to prohibit or burden the conduct of a lawful business inconsistently with State law; (2) the prohibition of the outdoor advertising business in the "protected areas" has no real and substantial relation to the public health, safety or welfare, and thus is violative of the Due Process Clause of the Fourteenth Amendment; (3) the ordinance discriminates against appellants and others of their class so as to deny them the equal protection of the laws guaranteed by the Equal Protection Clause of the Fourteenth Amendment; and (4) the ordinance deprives appellants and others of their class of their property without just compensation and without due process of law, in violation of the Due Process Clause of the Fourteenth Amendment.

I. Before considering these contentions, however, we must determine if the appellants are barred from bringing this action under the doctrine of res judicata.

In 1965, E. B. Elliott Advertising Company brought an action in Dade County Circuit Court seeking a writ of mandamus to require the City of Miami to permit it to erect a commercial outdoor advertising sign on a site it had leased, which was located within 200 feet of an expressway. Dade County was joined as a party defendant since the matter was controlled by Ordinance No. 63-26. Elliott conceded for the purposes of appeal that if the ordinance was applicable to all types of outdoor advertising it could be supported by safety and aesthetic considerations and therefore did not violate the guarantee of due process under the Florida and United States Constitutions, but argued that the distinctions made between commercial signs and "point of sale signs" and between signs within 200 feet of an expressway right-of-way and those within the 600-foot limit, but outside the 200-foot limit constituted a denial of equal protection. The court upheld the validity of the ordinance and was affirmed. State ex rel. Boozer v. City of Miami, (Dade Cty.Cir. Ct. 1965) 26 Fla.Supp. 29, aff'd. (Fla. Dist.Ct.App.,1967) 193 So.2d 449, cert. den. (Fla.) 201 So.2d 553.

After the decision in Boozer, supra, Elliott applied for a Class C advertising permit to operate a commercial billboard on the same site. The application was denied. Elliott thereafter erected a Class C, commercial, sign, even though it possessed only a Class B, point of sale, permit and was charged with a violation of Ordinance No. 63-26. At the subsequent trial, Elliott contended that the ordinance was unconstitutional, but the court found this contention barred under the doctrine of res judicata by the decision in Boozer. Metropolitan Dade County v. E. B. Elliott Adv. Co., Fla.Dist.Ct.App., 1968, 214 So.2d 511.

In Donnelly Adv. Co. v. Metropolitan Dade Cty., Dade Cty.Cir.Ct., No. 63 C 13906, ______, Donnelly sought a declaratory judgment that Ordinance No. 63-26 was invalid on constitutional grounds, but Boozer was held to be res judicata.

Under the doctrine of res judicata, a prior judgment on the merits rendered by a state court of competent jurisdiction operates as a bar to a subsequent adjudication of the same cause of action, in substance rather than form, between the same parties or their privies in federal court, not only as to every matter which was offered and received to sustain or defeat the claim, but as to every other matter which might with propriety have been litigated and determined in that action, regardless of whether questions of federal or state law are involved. Acree v. Air Line Pilots Association, 5 Cir. 1968, 390 F.2d 199, cert. den. 393 U.S. 852, 89 S.Ct. 88, 21 L.Ed.2d 122; Hudson v. Lewis, 5 Cir. 1951, 188 F.2d 679; Iselin v. C. W. Hunter Co., 5 Cir. 1949, 173 F.2d 388; Jarrard v. Southeastern Shipbuilding Corporation, 5 Cir. 1947, 163 F.2d 960; Thompson v. Houston Oil Co., 5 Cir. 1930, 37 F.2d 687. 28 U.S.C. § 1738 (1948). However, it is equally elementary that one is not bound by a judgment in personam resulting from litigation in which he is not designated as a party or to which he has not been made a party by service of process. Zenith Radio Corp. v. Hazeltine Research, 395 U.S. 100, 89 S.Ct. 1562, 23 L.Ed.2d 129 (1969); Hansberry v. Lee, 311 U.S. 32, 61 S.Ct. 115, 85 L.Ed. 22 (1940).

Two of the named plaintiffs-appellants in the instant action, Outdoor Media, Inc., and Webster Outdoor Advertising, were in no way involved in the previous actions brought by Donnelly and Elliott to challenge Ordinance No. 63-26, either as named parties or as members of a class being represented, and therefore are not bound by these previous adjudications. Nor are any unnamed members of the class represented in this action (with possible minor exception), which includes all persons who are in the outdoor advertising business or who own or lease outdoor advertising facilities in Dade County, Florida, bound by the prior state actions.

Nor does this Court lack jurisdiction to decide the substantive...

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