Florida Outdoor Advertising, LLC v. Boynton Beach

Decision Date27 June 2001
Docket NumberNo. 00CV8577.,00CV8577.
Citation182 F.Supp.2d 1201
PartiesFLORIDA OUTDOOR ADVERTISING, LLC., and Gold Coast Advertising, Inc., Plaintiffs, v. CITY OF BOYNTON BEACH, Defendant.
CourtU.S. District Court — Southern District of Florida

Gary Ray Rutledge, John Ross Ellis, Rutledge Ecenia Purnell & Hoffman, Tallahassee, FL, Thomas Richard Julin, Hunton & Williams, Miami, FL, Myron D. Cohen, Hunton & Williams, New York City, for Florida Outdoor Advertising, LLC.

Tima Marie Talarchyk, Berger Singerman, Fort Lauderdale, FL, for Gold Coast Advertising, Inc.

Michael Thomas Burke, Johnson Anselmo Murdoch Burke & George, Fort Lauderdale, FL, for City of Boynton Beach.


MIDDLEBROOKS, District Judge.

THIS CAUSE is before the Court upon cross-motions for summary judgment. The Court has reviewed the extensive factual submissions and excellent memoranda of law filed by the parties, and heard oral argument.


The issue presented in this case is the extent to which the First Amendment to the United States Constitution restricts the authority of local government to enact legislation regulating outdoor advertising. Plaintiffs filed their actions seeking declaratory and injunctive relief and attorneys' fees challenging the City of Boynton Beach's 1997 Sign Code. Plaintiffs move for summary judgment on the grounds that the enactment of the ordinance was an unconstitutional exercise of the City's police power and an abridgment of Plaintiffs' First Amendment rights.

Defendant argues that it is entitled to summary judgment because Plaintiffs' challenges to its 1997 Sign Code are moot due to the enactment of Ordinance 000-78 (the "Ordinance") which repealed or otherwise remedied the contested portions of the 1997 Sign Code. See Boynton Beach, Fla. Ordinance No. 000-78 (January 1, 2001). Alternatively, Defendant argues that the Court can sever any of the challenged portions of the 1997 Sign Code which this Court may find to be unconstitutional from the remaining constitutional portions.


The following material facts are not in dispute. Plaintiffs are both outdoor advertising companies. Outdoor advertising companies lease or purchase real estate upon which they erect and maintain billboards, and in turn lease space on billboards to persons or entities wishing to communicate messages to the general public. Customers of outdoor advertising companies use billboards for advertising both commercial and noncommercial matters. Plaintiffs propose to erect varying quantities of "off-premise" billboards on various parcels throughout the City of Boynton Beach.2

According to the City, an "Off-Premise Sign" is "[a] sign advertising an establishment, merchandise, service or entertainment, which is sold, produced, manufactured and/or furnished, at a place other than the property on which said sign is located."3 A "Billboard" is "[a] sign normally mounted on a building wall or free-standing structure with advertising copy which refers to something other than the name and primary character of the business on the premises or is located on a remote site from service of site referred to by the sign copy." Id. Under the City's former sign ordinance4 (the "1997 Sign Code"), such off-premise signs and billboards were prohibited.5

On December 16, 1999; January 25, 2000 and May 15, 2000, Florida Outdoor applied for permits to construct fifteen outdoor advertising off-premise billboards/signs.6 The City rejected each of these applications. (Lead Case Jt. Pretrial Stip. at 3). On June 5, 2000, and again on July 10, 2000, counsel for Florida Outdoor notified the City of its claim that the City's sign ordinance was unconstitutional. Id. On August 3, 2000, Plaintiff Gold Coast submitted five (5) applications to the City for construction of off-premise signs. (Consolidated Case Jt. Pretrial Stip. at 3). The City rejected each of the five applications on August 7, 2000. Id. The Plaintiffs then filed these actions.7

On January 1, 2001, the City enacted an ordinance amending the 1997 Sign Code (the "Ordinance").8 In particular, the Ordinance amended the 1997 Sign Code by: (1) adding "aesthetics" and "enhancement of values" to the "Purposes" section of the Sign Code;9 (2) adding a provision stating that "[a]ny sign containing noncommercial copy shall be deemed an on premises sign, and any sign authorized in this chapter is allowed to contain noncommercial copy in lieu of any other copy (the `Deeming Clause')";10 and (3) amending the section on "Temporary political signs" to remove the specific temporal limitations and to authorize the posting of temporary political signs "during the period preceding any local, state, or national election."11


Summary judgment is authorized only when the moving party meets its burden of demonstrating that "the pleadings, depositions, answers to interrogatories and admissions of file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56; see Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). The Adickes Court explained that when assessing whether the movant has met this burden, the court should view the evidence and all factual inferences therefrom in the light most favorable to the party opposing the motion. See Adickes, 398 U.S. at 157, 90 S.Ct. 1598; Poole v. Country Club of Columbus, Inc., 129 F.3d 551, 553 (11th Cir.1997)(citing Adickes).

The party opposing the motion may not simply rest upon mere allegations or denials of the pleadings; after the moving party has met its burden of coming forward with proof of the absence of any genuine issue of material fact, the non-moving party must make a sufficient showing to establish the existence of an essential element to that party's case, and on which that party will bear the burden of proof at trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Barfield v. Brierton, 883 F.2d 923, 933 (11th Cir.1989).

If the record presents factual issues, the Court must not decide them, it must deny the motion and proceed to trial. See Environmental Defense Fund v. Marsh, 651 F.2d 983, 991 (5th Cir.1981). Summary judgment may be inappropriate even where the parties agree on the basic facts, but disagree about the inferences that should be drawn from these facts. See Lighting Fixture & Elec. Supply Co. v. Continental Ins. Co. 420 F.2d 1211, 1213 (5th Cir.1969). If reasonable minds might differ on the inferences arising from undisputed facts, then the Court should deny summary judgment. See Impossible Electronic Techniques, Inc. v. Wackenhut Protective Sys., Inc., 669 F.2d 1026, 1031 (5th Cir.1982); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)("[T]he dispute about a material fact is genuine,' ... if the evidence is such that a reasonable jury could return a verdict for the non-moving party.").

Moreover, the party opposing a motion for summary judgment need not respond to it with evidence unless and until the movant has properly supported the motion with sufficient evidence. See Adickes, 398 U.S. at 160, 90 S.Ct. 1598. The moving party must demonstrate that the facts underlying all the relevant legal questions raised by the pleadings or otherwise are not in dispute, or else summary judgment will be denied notwithstanding that the non-moving party has introduced no evidence whatsoever. See Brunswick Corp. v. Vineberg, 370 F.2d 605, 611-12 (5th Cir.1967). The Court must resolve all ambiguities and draw all justifiable inferences in favor of the non-moving party. See Anderson, 477 U.S. at 255, 106 S.Ct. 2505.


In Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 101 S.Ct. 2882, 69 L.Ed.2d 800 (1981), the Supreme Court set forth the foundation of today's "billboard jurisprudence."12 Facing what it termed the "problem of applying the broad principles of the First Amendment to unique forums of expression," the Metromedia Court had before it an ordinance similar to the one at issue in this case. Id. at. The Metromedia plaintiffs were billboard owners who sought to enjoin the city of San Diego's enforcement of its billboard ordinance which prohibited all outdoor advertising signs except those advertising goods or services available at a sign's location. The Metromedia plurality held that the City of San Diego had a valid interest in traffic safety and aesthetics, and could therefore legitimately regulate commercial speech, but that such interest could not justify distinguishing amongst different types of noncommercial speech based on content. Specifically, because the ordinance provided exceptions to the general ban for some specific noncommercial messages but prohibited other noncommercial messages, the ordinance was found to be facially unconstitutional.

Since Metromedia, challenges to similar local billboard ordinances and/or regulations have been numerous and one could even say strategic. Metromedia has not been the "tower of babel" in the sense that Justice Rehnquist envisioned, but has instead been more of a Pandora's Box. Billboard companies, some knowing full well what local ordinance and/or regulatory requirements are, make applications to construct billboards in excess of the size and location requirements contained in such ordinances/regulations. When, as expected, the permits are denied, the companies then file constitutional challenges of the sort presented in this case. This strategic use of Metromedia, while unsettling, does not, under existing precedent, permit a deviation from the Constitutional analysis required by Metromedia or the vesting decisions of the Eleventh Circuit.

The 1997 Sign Code

The City's 1997 Sign Code regulates all types of...

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