Fla. Beach Adver., LLC v. City of Treasure Island

Decision Date06 January 2021
Docket NumberCase No. 8:19-cv-3113-T-33TGW
Citation511 F.Supp.3d 1255
Parties FLORIDA BEACH ADVERTISING, LLC, and David M. Duvernay, Plaintiffs, v. CITY OF TREASURE ISLAND, FLORIDA, Defendant.
CourtU.S. District Court — Middle District of Florida

Kyle David Bass, Timothy W. Weber, Weber, Crabb & Wein, PA, St. Petersburg, FL, for Plaintiffs.

Andrew James Salzman, Laura Elizabeth Schinella, Thomas Robert Unice, Jr., Benjamin J. James, Jeffrey D. Jensen, Unice Salzman Jensen, PA, Trinity, FL, for Defendant.



This matter comes before the Court upon consideration of Defendant City of Treasure Island, Florida's Motion for Summary Judgment (Doc. # 45), filed on November 6, 2020, and Plaintiffs Florida Beach Advertising, LLC, and David M. Duvernay's Amended Motion for Summary Judgment, filed on November 25, 2020. (Doc. # 55). The parties have responded to each Motion. (Doc. ## 57; 61). For the reasons set forth below, both Motions are granted in part and denied in part.

I. Background

Duvernay is the owner and operator of Florida Beach Advertising, a business that sells advertising space on a "30-foot-wide, 14-foot-tall digital advertising screen" attached to a boat named the "Get Lit." (Doc. # 48 at 16:4-5, 18:15-22). Although it is disputed precisely where Florida Beach Advertising operates the Get Lit, the parties agree that it advertises around the coast of Pinellas County and within certain waterways. (Doc. # 48 at 23:21-24:4).

On October 5, 2019, Duvernay received a citation for an alleged violation of Section 58-44 of the City's Code of Ordinances, which provides: "No person shall post or display any sign, banner or advertisement unless licensed so to do by the city commission as a concessionaire or a licensee under a written concession or license agreement or lease." (Doc. ## 49-1; 58-1). According to the citation, Duvernay was "observed operating a commercial vessel within the waterways of Treasure Island with an attached electronic/changing advertisement billboard," without the City's permission. (Doc. # 49-1) (emphasis omitted).

Before receiving this citation, Duvernay was planning on participating in the American Legion of Madeira Beach's Twenty-Third Annual Veteran's Day Boat Parade. (Doc. # 48 at 43:23-44:7). In his deposition, Duvernay stated that Plaintiffs intended to sponsor the Parade. (Id. at 45:24-46:6). The Parade begins at the American Legion in Madeira Beach and travels through some of Treasure Island's waterways. (Doc. # 47 at 12:4-12). Because it was set to pass through the City's waterways, Duvernay contacted the City about displaying a sign during the Parade. (Doc. # 48 at 49:2-5). The parties dispute precisely what that request entailed. In his deposition, Duvernay states that he asked a City employee for permission to display a sign that stated, "Thank you, veterans," in the Parade, and told the employee that he "had no intention of doing any advertising whatsoever." (Id. at 51:5-23). The City counters that Duvernay only told the City that he would be participating in the Parade. (Id. at 48:25-49:5). The parties agree, however, that whatever the conversation included, no permit to participate in the Parade was issued. (Doc. # 49 at 30:22-31:4).

Thereafter, on October 16, 2019, Duvernay posted an apology to the social media website Facebook, stating that Plaintiffs would no longer be able to participate in the part of the Parade that passed through the City's waterways:

For everyone who will be present and supporting our #Veterans at the 2019 23rd Annual Veterans Boat Parade. Unfortunately Florida Beach Advertising will have to stop half through the parade because Treasure Island, Florida and Treasure Island City Hall won't allow us to display a "Thank You Veterans" sign on our boat. We apologize to American Legion Post 273 Madeira Beach, Fl 33708 and American Legion, Post 158, Treasure Island, FL for any inconvenience this may cause.

(Doc. # 48 at 50:18-24, 57:25-58:2; Doc. # 49-3). The Facebook post garnered over 500 comments and included an image of the boat and sign. (Doc. # 49-3). Plaintiffs characterize these comments as critical of the City. (Doc. # 48 at 55:19-21).

The next day, on October 17, 2019, City Commissioner J. Tyler Payne e-mailed Duvernay apologizing for the ordeal and providing him with steps he would have to take to get the City's approval of his sign for the Parade. (Doc. # 48 at 57:5-20; Doc. # 49-4 at 1). Payne followed up, stating: "I just spoke with the City Manager and I am hopeful that we can get the necessary license and authorization on the Agenda for the November 5th Commission Meeting." (Doc. # 49-4 at 1-2). Duvernay then applied through email to the City Commission for a permit to display his sign during the portion of the Parade that travelled through Treasure Island waters. (Doc. # 48 at 57:14-18; Doc. # 49 at 20:19-21:9; Doc. # 49-6). Specifically, Duvernay requested a license under Section 58-44 and a waiver under Section 73-34(10) of the City's Code of Ordinances.1 (Doc. # 49-6). The City Manager, Garry Brumback responded that he would put the requests before the City Commission at the November 5, 2019, meeting. (Doc. # 49 at 21:10-19; Doc. # 49-6).

At the meeting, Brumback introduced the item by noting that he originally intended to allow Plaintiffs to display the sign during the Parade. (Doc. # 49 at 31:15-21, 32:3-5). However, in Brumback's words, he could no longer recommend doing so "in good conscience" because "at that point it got really ugly and it became a series of bullying and threatening posts on Facebook that even named a couple of members of [the] Commission. And it outwardly stated that [the] Commission was anti-veteran, as was I." (Id. at 31:19-32:5). Following some contentious exchanges, the City Commission voted unanimously to reject Duvernay's request, with Payne absent. (Id. at 45:13-46:8). The City admits that it has no written criteria by which such a request should be evaluated, although other sections of the Code of Ordinances do include certain criteria for the City to grant zoning variances. (Id. at 22:12-15; Doc. # 61 at ¶ 20; Doc. # 60-1). The parties present no evidence that any individual has ever applied for or received an exemption to Section 73-34(10). (Doc. # 49 at ¶ 58:14-18).

Despite the City's denial of his application, Duvernay participated in the Parade as originally planned. (Doc. # 48 at 61:19-62:13). During the length of the Parade, Duvernay displayed a sign stating "Thank You Veterans! God Bless America," and featuring a bald eagle and American flag:

(Doc. # 48 at 61:22-62:1; Doc. # 49-8 at 8; Doc. # 49-13). Duvernay did not exit the Parade before entering Treasure Island waters. (Doc. # 48 at 62:2-7).

At the conclusion of the Parade, Duvernay received a citation from the Treasure Island police marine unit for violating Section 73-34(10) of the Sign Code, which prohibits "[s]igns in or upon any river, bay, lake, or other body of water within the limits of the city, unless authorized by the city commission." (Doc. # 48 at 63:24-64:2; Doc. # 49-9; Doc. # 49-10 at 9-10). The November 9, 2019, citation stated that Duvernay "was observed in the intracoastal waterway between Isle of Capri and Isle of Palm" and that "city permission was denied for the billboard on [November 5, 2019,] to operate within city limits." (Doc. # 49-9) (emphasis omitted). No other boat captain participating in the Parade received a citation for violating the Sign Code, despite other boats also displaying signs. (Doc. # 46 at 27:24-28:16, 29:16-19; Doc. # 47 at 27:13-19; Doc. # 48 at 93:9-94:13).

Duvernay was again cited on December 21, 2019, for a purportedly separate violation of Section 73-34(10) of the Sign Code. (Doc. # 49-12). The citation provides that Duvernay was observed advertising with a large electric sign within the City's boundaries. (Id. ). The prosecution of all three citations issued by the City against Duvernay is currently pending in state court. (Doc. # 50-1 at 2).

Plaintiffs initiated this action on December 19, 2019. (Doc. # 1). The complaint includes claims against the City for a facial First Amendment challenge (Count I), an as-applied First Amendment challenge (Count II), and preemption of Section 73-34(10) (Count III). (Id. ). The City filed an answer on February 27, 2020. (Doc. # 27). The parties now both seek entry of summary judgment in their favor. (Doc. ## 45; 55). Each party has responded, and the Motions are now ripe for review. (Doc. ## 57; 61).

II. Legal Standard

Summary judgment is appropriate "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). A factual dispute alone is not enough to defeat a properly pled motion for summary judgment; only the existence of a genuine issue of material fact will preclude a grant of summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

An issue is genuine if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Mize v. Jefferson City Bd. of Educ., 93 F.3d 739, 742 (11th Cir. 1996) (citing Hairston v. Gainesville Sun Publ'g Co., 9 F.3d 913, 918 (11th Cir. 1993) ). A fact is material if it may affect the outcome of the suit under the governing law. Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th Cir. 1997). The moving party bears the initial burden of showing the Court, by reference to materials on file, that there are no genuine issues of material fact that should be decided at trial. Hickson Corp. v. N. Crossarm Co., 357 F.3d 1256, 1260 (11th Cir. 2004) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ). "When a moving party has discharged its burden, the non-moving party must then ‘go beyond the pleadings,’ and by its own affidavits, or by ‘depositions, answers to...

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