Granite State v. City of Roswell

• Citation: 658 S.E.2d 587,283 Ga. 417
• Decision Date: 10 March 2008
• Docket Number: No. S07A1885.,S07A1885.
• Parties: GRANITE STATE OUTDOOR ADVERTISING, INC. v. CITY OF ROSWELL.
• Court: Supreme Court of Georgia

283 Ga. 417

658 S.E.2d 587

GRANITE STATE OUTDOOR ADVERTISING, INC. v. CITY OF ROSWELL.

No. S07A1885.

Supreme Court of Georgia.

March 10, 2008.

Reconsideration Denied April 11, 2008.

G. Franklin Lemond, Jr., Matthew Christopher Klase, Edward Adam Webb, Webb Law Group, L.L.C., Atlanta, for Appellant.

Richard A. Carothers, Carothers & Mitchell, LLC, Buford, for Appellee.

BENHAM, Justice.

Granite State Outdoor Advertising, Inc. ("Granite State") is in the business of buying and leasing land for the purpose of erecting signs and billboards displaying both commercial and noncommercial messages. In May and June of 2003, Granite State submitted three applications to the City of Roswell ("City") to construct billboard signs, each 672 square feet in area and 70 feet in height, at different locations within the City. The City rejected each application because the sign ordinance in place at the time limited off-premises signs to a maximum area of 128 square feet and 12 feet in height and because the applications were incomplete. On July 16, 2003, the City enacted a moratorium on the issuance of sign permits effective until September 15, 2003. The purpose of the moratorium was to allow the City time to draft and implement an amended sign ordinance. Granite State alleges it attempted to submit applications for similarly-sized signs during the moratorium and the City did not accept any of its sign applications for processing.

After its applications were rejected by the City, Granite State brought suit, contending that the City's entire sign ordinance, as it existed in April 2003, was unconstitutional. The trial court denied Granite State's motion for partial summary judgment and granted the City's cross-motion for summary judgment. Granite State now alleges several enumerations of error concerning its constitutional challenge to the City's April 2003 sign ordinance.

1. Granite State argues that the trial court erred when, by relying on the decisions of the United States Court of Appeals for the Eleventh Circuit ("Eleventh Circuit") in Granite State Outdoor Advertising, Inc. v. Clearwater, 351 F.3d 1112 (11th Cir.2003) and in KH Outdoor, LLC v. City of Trussville, 458 F.3d 1261 (11th Cir.2006), it limited the extent of Granite State's standing to challenging, either as applied or facially, only those provisions of the ordinance by which Granite State was injured in fact. Under federal jurisprudence, there are three constitutional requirements for obtaining standing: (1) an injury in fact; (2) a causal connection between the injury and the causal conduct; and (3) the likelihood that the injury will be redressed with a favorable decision. Bennett v. Spear, 520 U.S. 154, 162, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997); Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). In addition to the constitutional requirements for standing, there is a subset of "prudential" standing requirements that have been developed by the United States Supreme Court. Allen v. Wright, 468 U.S. 737, 750-51, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984). One of these prudential standing requirements is that a party is limited to asserting its own rights and not that of third parties. Id.¹ The federal courts have carved out an exception to this particular prudential standing requirement in free speech cases, adopting what is known as the overbreadth doctrine. Clearwater, 351 F.3d at 1116.

The overbreadth doctrine permits the assertion of third-party rights in free speech cases when a statute is applied constitutionally to the party before the court, but may be unconstitutional if applied to any third parties not before the court.² Id.; Broadrick v. Oklahoma, 413 U.S. 601, 613 (93 S.Ct. 2908, 37 L.Ed.2d 830 (1973). The overbreadth doctrine is not an exception to establishing constitutional standing which unequivocally requires an injury in fact. Virginia v. American Booksellers Assoc., Inc., 484 U.S. 383, 392, 108 S.Ct. 636, 98 L.Ed.2d 782 (1988) (to challenge the constitutionality of a statute on overbreadth grounds the plaintiff must "establish at an irreducible minimum an injury in fact"); Secretary of State of Md. v. Joseph H. Munson Co., Inc., 467 U.S. 947, 104 S.Ct. 2839, 81 L.Ed.2d 786 (1984) facial challenges to overly broad statutes are permissible if the party asserting the challenge can show an injury in fact). Furthermore, the overbreadth doctrine does not apply to commercial speech, but may only be used as an exception to prudential standing in the context of noncommercial speech.³ See Bates v. State Bar of Arizona, 433 U.S. 350, 97 S.Ct. 2691, 53 L.Ed.2d 810 (1977); Clearwater, 351 F.3d at 1116 (overbreadth doctrine applies to cases concerning noncommercial speech).

In Clearwater, the Eleventh Circuit held that Granite State was required to meet the constitutional requirement of standing that it had suffered an injury in fact, before it could use the overbreadth doctrine to assert the rights of third-parties. 351 F.3d at 1116. More specifically, the Eleventh Circuit concluded that Granite State could only challenge the provision under which it was injured, and, per the overbreadth doctrine, as that provision would apply to third parties in the context of noncommercial speech. Id. In the instant case, Granite State argues that the Eleventh Circuit's decision in Clearwater and similar decisions are "aberrant" and that it is entitled to facially attack any and all provisions of the City's ordinance that are allegedly unconstitutional. We disagree that Clearwater and its progeny are aberrant. See CAMP Legal Defense Fund, Inc. v. City of Atlanta, 451 F.3d 1257 (11th Cir.2006) (organization lacked standing under the overbreadth doctrine to challenge provisions of an ordinance by which its activities were not affected); Tanner Adver. Group, LLC v. Fayette County, 451 F.3d 777, 791 (11th Cir. 2006) (en banc) (plaintiff who challenged a county sign ordinance after its sign permit was denied lacked standing to challenge the ordinance's "Attention-getting devices" provision because "[t]he record is devoid of any evidence that [the plaintiff] ever intended to use `Attention-getting devices'....").

We also cannot agree with Granite State's assertions that these federal cases are inconsistent with Georgia jurisprudence. In regard to establishing standing, we have held that "the only prerequisite to attacking the constitutionality of a statute `is a showing that it is hurtful to the attacker. (Cits).'" Bo Fancy Productions, Inc. v. Rabun Co. Bd. of Commissioners, 267 Ga. 341, 344-45, 478 S.E.2d 373 (1996) (concerning constitutionality of a zoning ordinance in the context of "prior restraint"). We have not expressly adopted the federal overbreadth doctrine as an exception to standing; however, we have articulated a standard of "relaxed" standing in free speech cases, allowing broader challenges to the constitutionality of a statute in such contexts. Id.; Fulton County v. Galberaith, 282 Ga. 314, 316, 647 S.E.2d 24 (2007) (relaxed standing is used in free speech cases). See also Feminist Women's Health Center v. Burgess, 282 Ga. 433, 651 S.E.2d 36 (2007) (physicians who performed abortions could have third-party standing to challenge, on their patients' behalf, the constitutionality of the state's denial of Medicaid reimbursement payments for medically necessary abortions). However, even with this relaxed standard of standing for free speech cases, aggrieved parties must still show harm by the provision(s) being challenged as unconstitutional.

For example, in Bo Fancy Productions, Inc., two Rabun County agencies filed and obtained an injunction banning festival promoters from holding a festival based on the promoters' failure to comply with certain zoning ordinances and the Mass Gathering Act (OCGA § 31-27-1 et seq.). The promoters allowed the festival to go on in spite of the injunction and were later held in contempt. Although they never applied for and were never denied a permit or license for their festival, we nevertheless held that the promoters had standing, under the relaxed standard for free speech cases, to challenge, as an unconstitutional prior restraint, that part of the Mass Gathering Act which required anyone who was holding a mass gathering to apply for a permit. 267 Ga. at 344, 478 S.E.2d 373. We found that the promoters had standing to attack that portion of the statute because they were held in contempt when they "r[a]n afoul" of the court's enforcement of the statute. Id. at 344-45, 478 S.E.2d 373. As such, there was an injury in fact insofar as the promoters were actually penalized for failing to procure the statutorily required permit. Our decision in Bo Fancy does not, as Granite State urges, permit a party denied a permit based on the noncompliance with a constitutionally permissible provision⁴ to attack other provisions by which it was not injured in any manner whatsoever. See Feminist Women's Health Center v. Burgess, 282 Ga. at 435-36, 651 S.E.2d 36 (physicians performing abortions were entitled third-party standing because they had a financial interest in and were injured in fact from the state's denial of Medicaid reimbursements for their patients who received medically necessary abortions).

Similarly, the appellees in Fulton County v. Galberaith never attempted to attack a provision by which they were not harmed in fact. Those appellees were prohibited from erecting off-premises advertising signs by a provision that banned all off-premise signs in commercial zones. We found that appellees had "as applied" standing as well as standing to facially attack the ordinance because it effectively found all off-premises signs "presumptively illegal" and, through a regulatory scheme of exceptions to the presumption, prohibited signs based on their content. 282 Ga. at 315-17, 647 S.E.2d 24.⁵ Although we articulated a relaxed standard of standing in Galberaith, we did not apply relaxed...