Granite State Outdoor Adver. v. City of Clearwater
| Decision Date | 23 July 2002 |
| Docket Number | No. 8:01CV1663T30MSS.,8:01CV1663T30MSS. |
| Citation | 213 F.Supp.2d 1312 |
| Parties | GRANITE STATE OUTDOOR ADVERTISING, INC., Plaintiff, v. CITY OF CLEARWATER, FLORIDA, et al., Defendants. |
| Court | U.S. District Court — Middle District of Florida |
Kent G. Whittemore, Whittemore, Denson, P.A., St. Petersburg, FL, Sean R. Smith, E. Adam Webb, Dow, Lohnes & Albertson, PLLC, Atlanta, GA, for plaintiff.
Leslie Kathleen Dougall-Sides, Clearwater, FL, William David Brinton, Cristine M. Russell, Rogers, Towers, Bailey, Jones & Gay, Jacksonville, FL, for defendants.
Sean R. Smith, Dow, Lohnes & Albertson, PLLC, Atlanta, GA, for movants.
This cause came before the Court for consideration upon the following Motions:
1. Individual Defendants' Motion to Dismiss the Complaint with Prejudice (Dkt.# 10) and Motion to Dismiss the Amended Complaint (Dkt.62),1 Plaintiff's response in opposition thereto (Dkt.# 13) and the individual Defendants' reply thereto (Dkt.22);
2. Plaintiff's Motion for Preliminary Injunction (Dkt.# 16), supporting memorandum (Dkt.# 17) and Defendants' memorandum in opposition thereto (Dkt.# 30);
3. Plaintiff's Motion for Partial Summary Judgment (Dkt.# 18), supporting memorandum (Dkt.# 19), and Defendants' memorandum in opposition thereto (Dkt.# 42), and
4. Defendants' Motion for Final Summary Judgment (Dkt.# 41), supporting memorandum (Dkt.# 42) and Plaintiff's response in opposition thereto (Dkt.# 51).
Both parties have also filed supporting affidavits and exhibits to their Motions, including certified copies of the ordinance at issue. The Court heard the arguments of counsel on March 15, 2002. Additionally, the Court requested (Dkt.71), and considered, the parties additional briefs on standing. (Dkts.74, 75).
Plaintiff has filed a separate Statement of Facts in support of its Motions for Partial Summary Judgment and Preliminary Injunction. (See Dkt. # 20). Defendants have incorporated their recitation of the facts as part of their memorandum in support of their Motion for Summary Judgment. (See Dkt. # 42). The undisputed facts are as follows.
Plaintiff, Granite State Outdoor Advertising, Inc., ("Granite State") is a Georgia corporation in the business of buying or leasing land upon which to construct signs and billboards to be used for the dissemination of both commercial and non-commercial speech. (Amded.Compl., ¶ 6). Defendants point out that Granite State employs only two persons, the president and vice-president, and operates out of the Georgia residence of its president, who previously worked for two outdoor advertising companies. Since its incorporation in 1997, Granite State has "never erected a billboard, never operated a billboard, has never been licensed as an outdoor advertising company, and has not yet held a permit in its own name to erect a billboard." (Charles Dep. at 39-41, 47, 68). To date, Granite State has received profits from the sale of at least twenty-two billboard permits to Eller Media which were obtained from similar litigation brought against various cities and municipalities in the state of Georgia. (Id. at 12, 69).
In the case at bar, Granite State entered into lease agreements for five different parcels of real property located in commercial or industrial areas in the city of Clearwater, Florida ("Clearwater"), upon which to construct and operate one free-standing billboard sign on each parcel of property. Id., ¶ 8. Plaintiff subsequently obtained three other lease agreements and filed an amended complaint to add its claims regarding these three parcels. Id., ¶ 8A.
Defendant Clearwater is a political subdivision of the state of Florida and describes itself as a "resort community on the west coast of the state with more than five miles of beaches on the Gulf of Mexico" which has an economic base that relies "heavily on tourism." (See § 3-1801). Clearwater has codified various sign regulations to create a comprehensive scheme for regulating, inter alia, the permitting, placement, number, construction, size, height, design, operation, and maintenance of the signs within the city's boundaries. (Amded.Compl., ¶ 9). Clearwater has regulated the height and size of signs for more than twenty-five years and enacted various codes over the years. (See Dkt. # 42, pp. 6-8).
The sign regulations at issue are contained within Division 18 of Clearwater's Community Development Code (the "Code"). The entirety of the sign ordinance, "Division 18" containing §§ 3-1801 through 3-1807 (the "Ordinance"), is attached as Appendix 1 to this Order and is referred to herein by section number. Section 3-1802 contains the specific purposes and intentions for which the sign regulations were promulgated. Clearwater's sign regulations are intended to:
A. Enable the identification of places of residence and business.
B. Allow for the communication of information necessary for the conduct of commerce.
C. Lessen hazardous situations, confusion and visual clutter caused by proliferation, improper placement, illumination, animation and excessive height, area and bulk of signs which compete for the attention of pedestrian and vehicular traffic.
D. Enhance the attractiveness and economic well-being of the city as a place to live, vacation and conduct business.
E. Protect the public from the dangers of unsafe signs.
F. Permit signs that are compatible with their surroundings and aid orientation, and preclude placement of signs in a manner that conceals or obstructs adjacent land uses or signs.
G. Encourage signs that are appropriate to the zoning district in which they are located and consistent with the category of use to which they pertain.
H. Curtail the size and number of signs and sign messages to the minimum reasonably necessary to identify a residential or business location and the nature of any such business.
I. Establish a sign size in relationship to the scale of the lot and building on which the sign is to be placed or to which it pertains.
J. Preclude signs from conflicting with the principal permitted use of the site or adjoining sites.
K. Regulate signs in a manner so as to not interfere with, obstruct vision of or distract motorists, bicyclists or pedestrians.
L. Require signs to be constructed, installed and maintained in a safe and satisfactory manner.
M. Preserve and enhance the natural and scenic characteristics of this waterfront resort community.
The sign ordinance also contains a provision under its "General Standards" section that provides, "[n]ot withstanding any other provision of this Code, no sign shall be subject to any limitation based on the content of the message contained on such sign." § 3-1804.H. Similarly, there is no distinction between commercial or non-commercial speech within the sign ordinance. The sign ordinance regulates four categories of signs: 1) § 3-1803 prohibits twenty-five different types of signs (such as portable signs, vehicle signs and roof signs); 2) § 3-1805 allows twenty different types of signs without a permit (such as safety or warning signs, holiday decorations, garage or yard sale signs and for sale signs); 3) § 3-1806 proscribes certain height, area and lighting requirements for residential signs (subdivision development and multifamily entry signs and school and park identification monument signs) and nonresidential signs (freestanding, monument, transit shelter and attached signs)— these signs require a permit under the development review process; and 4) § 3-1807 permits signs that comply with eight enumerated "flexibility criteria"2 that may be approved under the City's Comprehensive Sign Program. The sign ordinance also contains a provision, § 3-1804, titled "General Standards," that prescribes building and electrical code compliance and regulates setback, lighting and illumination, banners and flags, gasoline price signs, and time and temperature signs.
Article 4 of the City's Code, titled "Development Review and Other Procedures," sets forth the process for obtaining various levels of permit approval and the appeals process. Division 10 of Article 4 requires that the application for approval of a sign "shall be reviewed and approved by the community development coordinator as a level one approval."3 The process for a level one approval is set forth in Division 3 of Article 4, with appropriate references to the appeals process set forth in Division 5— §§ 4-504 and 206 () and § 4-505 (). The relevant divisions of Article 4, §§ 4-206, 301-303, 501-505 and 1001-1007 are attached to this Order as Appendix 2.
The initial step in the permitting process is to complete the application process. Once submitted, a determination of completeness shall be made by the community development coordinator within five days. § 4-202C.1. Within five or ten working days after that determination is made, the community development coordinator or members of the development review committee (depending on whether the level one approval sought is for "standard development" or "flexible standard development") shall determine whether the application is "legally sufficient" (defined as "whether the required application materials have been prepared in a substantively competent manner"). § 4-202C.2 and 3. If insufficient, the application is deemed withdrawn.
Once an application is deemed complete and legally sufficient, the development review committee shall review the application in accordance with the applicable division of the Code; in the case of a sign permit, Article 3, Division 18. § 4-202.D. An appeal may be taken to the Community Development Board which holds a "quasi-judicial public hearing." See §§ 4-501, 504, 206. A hearing officer has the authority to hear appeals from the Community Development Board. § 4-501.B.
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