Horizon Outdoor v. City of Industry, California

• Citation: 228 F.Supp.2d 1113
• Decision Date: 21 October 2002
• Docket Number: No. CV023465ABCPLAX.,CV023465ABCPLAX.
• Parties: HORIZON OUTDOOR, LLC, et al., Plaintiffs, v. CITY OF INDUSTRY, CALIFORNIA, Defendant.
• Court: U.S. District Court — Central District of California

228 F.Supp.2d 1113

HORIZON OUTDOOR, LLC, et al., Plaintiffs, v. CITY OF INDUSTRY, CALIFORNIA, Defendant.

No. CV023465ABCPLAX.

United States District Court, C.D. California.

October 21, 2002.

COPYRIGHT MATERIAL OMITTED

Brian Shapiro, Esq., Lawrence D. Rohlfing Law Offices, Santa Fe Springs, E. Adam Webb, Esq., Atlanta, GA, for Plaintiff/Petitioner/Appellant.

Bruce Gridley, Esq.; Joseph Buchman, Esq.; Anthony Taylor, Esq., Burke Williams & Sorensen, Los Angeles, for Defendant/Respondent/Appellee.

ORDER RE: PLAINTIFFS' MOTION ON DEFENDANT'S SUGGESTION OF MOOTNESS; PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION

COLLINS, District Judge.

This case involves a First Amendment challenge to Defendant City of Industry's ("Defendant's" or the "City's") ordinance regulating advertising displays and other outdoor signs. Pending before the Court are (1) the Motion in Response to Defendant's Suggestion of Mootness (the "Motion") filed by Plaintiffs Horizon Outdoor, LLC ("Horizon") and Adam Sussman ("Sussman," and together with Horizon, "Plaintiffs") and (2) Plaintiffs' Motion for a Preliminary Injunction enjoining enforcement of Defendant's original sign ordinance. Plaintiffs' Motion in Response to Defendant's Suggestion of Mootness came on regularly for hearing on October 21, 2002. The Court withheld issuance of an order with respect to Plaintiffs' Motion for Preliminary Injunction on July 22, 2002, because the City raised issues of Horizon's standing and mootness based on Defendant's alleged implementation of a new ordinance. Having resolved those issues in Plaintiffs' favor, the matter is placed back on calendar on October 21, 2002. Having considered the parties' filings and arguments of counsel, the Court hereby GRANTS (1) Plaintiffs' Motion in Response to Defendant's Suggestion of Mootness and (2) Plaintiffs' Motion for a Preliminary Injunction for the reasons stated below.

I. FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff Horizon is a limited liability company organized under the laws of the State of Georgia and in the business of buying or leasing land upon which to construct signs to be used for the dissemination of both commercial and noncommercial speech. First Amended Complaint ("FAC") ¶ 1, 9. Plaintiff Sussman is a resident of the State of California and the owner and representative of Horizon. FAC ¶ 2. Defendant City of Industry is a political subdivision of California located in the Los Angeles area and has no residential zoning. FAC ¶ 3, Decl. of Mike Kissell ¶ 2; Decl. of Ralph D. Hanson ¶ 2. Defendant adopted an ordinance regulating display of advertising signs ("Sign Ordinance") in June 1961, Decl. of Anthony R. Taylor, Ex. K to Complaint, and amended it in August 1993, id. Ex. J, and again in May 1999, id. Ex. I. See also Ex. A to the Complaint.

The Sign Ordinance provides, in relevant part, that "[n]o sign or advertising matter of any kind shall be placed or maintained on any property in the city without first obtaining a permit from the city manager." Sign Ordinance § 15.32.010B. Further "no off-site advertising display shall be placed or maintained within six hundred sixty feet from the edge of the right-of-way of, and the copy of which is visible from, any interstate or primary highway, unless the applicant for the display first demonstrates approval of the California Department of Transportation or other applicable state agency in accordance with Section 5405(e) of the California Business and Professions Code." Id. § 15.32.030.

An "off-site advertising display" is defined as "any outdoor sign which advertises goods, products, services or facilities not sold, produced or conducted on the premises on which the sign is located ...." Id. § 15.32.050. Off-site advertising displays are only permitted if they were lawfully erected prior to July 1, 1996. See id. §§ 15.32.060J; 15.32.070L(1).¹ Any other sign "not specifically permitted" by the Sign Ordinance is also prohibited. Id. § 15.32.060K.²

The Sign Ordinance allows the city manager to issue permits for specific kinds and sizes of signs for shopping centers, free-standing commercial stores, office buildings, gasoline service stations, theaters, drive-through businesses, automobile agencies, real estate for sale or lease, industrial buildings, and charity events. Id. § 15.32.070B—15.32.070K. Any violation of the Sign Ordinance is a misdemeanor. Id. § 15.32.070A(3). Nonconforming signs may be ordered removed, without compensation. Id. § 15.32.080B(1).

No sign may be erected without permission of the owner of the property. Id. § 15.32.010A. Plaintiffs signed leases with two landowners in the City of Industry that would allow Horizon to post off-site advertising displays on the properties. Decl. of Adam Sussman ¶ 4. Those properties, as well as a third where Horizon has subsequently obtained permission to post signs, are located in heavily commercial areas along Interstate 60. Id. ¶ 6. Plaintiffs submitted two applications for the first two properties on April 18, 2002. Id. ¶ 7.³ On April 19, 2002, the City sent Horizon a letter stating:

Your applications for sign approvals at 17008 Evergreen Place and 17050 Evergreen Place cannot be processed and are enclosed. The proposed signs are not permitted in the City of Industry.

Decl. of Anthony R. Taylor Ex. G.; Ex. A to Opp'n to Plaintiffs' Motion re: Mootness.

Horizon filed a complaint on April 26, 2002, alleging that the Sign Ordinance violated the free speech rights guaranteed by the federal and state constitutions. Horizon filed a motion for preliminary injunction on May 9, 2002, noticed for hearing on June 10, 2002. On May 28, 2002, after the parties stipulated to extend the briefing schedule, the Court continued the hearing on the motion to June 24, 2002. Defendant filed an Opposition on June 3, 2002. Horizon filed a Reply on June 10, 2002. On June 24, 2002, the Court continued the hearing at the request of the parties to allow them to engage in settlement negotiations. On July 17, 2002, the parties filed a joint status report indicating that the City had rejected Horizon's settlement offer.⁴ In response to Plaintiffs' complaint challenging the constitutionality of the Sign Ordinance, on July 10, 2002, Defendant adopted Ordinance No. 681-U (the "Urgency Ordinance"), an interim sign ordinance, and commenced work on a new ordinance adopted by the City Council on September 12, 2002 and effective as of October 12, 2002. Opp'n to Plaintiffs' Motion re: Mootness at 9:13-15, Defendant's Separate Statement of Facts at 2:9-26 and Ex. A, October 15, 2002 Joint Status Report at 3:8-9.

On August 5, 2002, Defendant filed a motion to dismiss Horizon's complaint for lack of standing. The motion was set for hearing on September 9, 2002. On August 20, 2002, Plaintiffs filed the FAC, adding Sussman as a plaintiff. Plaintiffs also filed a response to Defendant's motion. The Court struck Defendant's motion to dismiss for lack of standing as moot on August 22, 2002 and the scheduled hearing date was vacated.

On September 3, 2002, the parties filed their joint status report with the Court. On September 6, 2002, Plaintiffs filed its Motion in Response to Defendant's Suggestion of Mootness, claiming that Defendant has suggested that Plaintiffs' constitutional challenge of the Sign Ordinance should be dismissed as moot as a result of Defendant's proposed sign regulations. Motion re: Mootness at 1:24-25. At the scheduling conference held on September 9, 2002, the Court set a briefing schedule on the issue of mootness. On September 24, 2002, Defendant filed a motion to dismiss.⁵ On October 1, 2002, Plaintiffs filed their reply.

II. DISCUSSION

A. MOOTNESS

In their Motion, Plaintiffs contend that (1) Defendant has failed to establish that the conduct challenged is sufficiently unlikely to occur to render Plaintiffs' claims moot; (2) their damages cannot be rendered moot by the passage of new regulations; and (3) their challenge to the restrictions contained in the Sign Ordinance is not moot because Plaintiffs obtained vested rights to post signs under those regulations.⁶

In its Opposition, Defendant argues that (1) the restrictions contained in the new ordinance are constitutionally permissible; (2) no legal purpose will be achieved by enjoining a superseded ordinance; and (3) Plaintiffs secured no vested rights in their applications.

1. Defendant Has Not Demonstrated that its Unconstitutional Conduct Will Not Occur in the Future.

"It is well settled that a defendant's voluntary cessation of a challenged practice does not deprive a federal court of its power to determine the legality of the practice." City of Mesquite v. Aladdin's Castle, Inc., 455 U.S. 283, 289, 102 S.Ct 1070, 71 L.Ed.2d 152 (1982). However, "[a] case might become moot if subsequent events made it absolutely clear that the allegedly wrongful conduct could not be reasonably expected to recur." Id. at 289 n. 10, 102 S.Ct. 1070. The defendant has the burden of showing that the "likelihood of further violations is sufficiently remote to make injunctive relief unnecessary." See id.

In National Advertising Company v. City of Ft. Lauderdale ("Ft. Lauderdale I"), the court found that the plaintiff's claims under the challenged sign code were not moot because "it remain[ed] uncertain whether the City would return the sign code to its original form if it managed to defeat jurisdiction." 934 F.2d 283, 286 (11th Cir.1991). See also National Advertising Company v. Town of Babylon, 900 F.2d 551, 554 n. 2 (2nd Cir.1990) ("A voluntary repeal of a constitutionally repugnant law does not necessarily moot challenges to it, because without a judicial determination of constitutionality the particular governing body remains free to reinstitute the law at a later date.")

In response to Plaintiffs' suit, Defendant enacted the Urgency Ordinance on July 10, 2002, pending passage of Ordinance No. 684 (the "New Ordinance"). September 3, 2002 Joint Status Report at...