Lacroix v. Town of Fort Myers Beach
| Decision Date | 28 June 2022 |
| Docket Number | 21-10931 |
| Parties | Adam LACROIX, Plaintiff-Appellant, v. TOWN OF FORT MYERS BEACH, FLORIDA, Bill Stout, in his individual capacity and acting as a code compliance officer for the Town of Fort Myers Beach, Florida, Roxanne Tucci, in her individual capacity and acting as a code compliance officer for the Town of Fort Myers Beach, Florida, Defendants-Appellees, Officer Lucci, Defendant. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Frederick Herbert Nelson, David J. Markese, American Liberties Institute, Orlando, FL, for Plaintiff-Appellant.
Selena A. Gibson, Christopher J. Stearns, Johnson Anselmo Murdoch Burke Piper & Hochman, PA, Fort Lauderdale, FL, for Defendants-Appellees.
Before Jill Pryor, Grant, and Marcus, Circuit Judges.
Adam LaCroix wants to share his religious message on the public streets and sidewalks of Fort Myers Beach, Florida ("the Town"). But Chapter 30 of the Town's Land Development Code (hereinafter, "the Ordinance") has created complications for LaCroix. To reduce visual blight and increase traffic safety, the Ordinance has prescribed an elaborate permitting scheme for all signs to be displayed within the Town. Among other things, and most significantly for our purposes, the Ordinance has entirely prohibited some categories of signs, including portable signs. LaCroix carried a portable sign to spread his message and, after receiving a written warning, the Town issued him a citation.
He sued the Town, Officer Stout, and Officer Tucci (the officers who cited him) in their individual and official capacities for declaratory, injunctive, and monetary relief, alleging violations of the First Amendment, the Equal Protection Clause, and Florida's Religious Freedom Restoration Act. The district court denied LaCroix's motion for a preliminary injunction, concluding that the Ordinance's ban on portable signs was content-neutral and narrowly tailored to serve a significant governmental interest. The trial court also rejected his Equal Protection claim, and the claim that the Ordinance conferred unbridled discretion on the Town's officials.
The Town's complete ban on all portable signs carried in all locations almost surely violates the First Amendment. Although we agree with the district court that the Ordinance's prohibition on portable signs is content-neutral, the codification still likely fails intermediate scrutiny because it entirely forecloses a venerable form of speech and does not leave open alternative channels of communication. We, therefore, reverse the judgment of the district court denying preliminary injunctive relief and remand for further proceedings consistent with this opinion.
These are the essential facts and procedural history. The Town of Fort Myers Beach, Florida passed the Ordinance in order to regulate all signage in the Town. The goal was to prevent visual blight and confusion while protecting the free speech rights of sign owners. The Ordinance attempts to achieve these ends broadly in two ways. First, section 30-5 of the Ordinance categorically prohibits twenty-four types of signs; included amongst them is the flat prohibition against portable signs. See TOWN OF FORT MYERS BEACH, FLA., CODE OF ORDINANCES appendix A, ch. 30, § 30-5 (2010). Second, sections 30-55 and 30-6 of the Ordinance require that all signs displayed in the Town must first obtain a permit, but also exempt twenty-six different kinds of signs from this requirement. Id. §§ 30-55, 30-6. These exempt signs include, among others, real estate/open house signs, garage sale sales, and temporary signs. Id. § 30-6.
On October 1, 2020, Adam LaCroix was peaceably attempting to share his religious message on a public sidewalk in the Town when Officer Stout issued a written warning for violating the Ordinance's ban on portable signs. Then, on December 17, 2020, Officer Tucci issued LaCroix a written citation for the same conduct. Although the record does not tell us precisely the dimensions of the sign LaCroix held nor its exact message, we know that LaCroix said he shared his "religious, political and social message" which "is one of hope and salvation that Christianity offers." We also know that the citing officers referenced the section of the Ordinance that bans portable signs (section 30-5(18)) on the citation.
On December 18, 2020, LaCroix called a Town official about the citation. He explained that he was not carrying a sign on December 17, but the Town official replied that he was cited because he was the "leader" of a group that was carrying portable signs on that day. LaCroix complained that this was unfair; the Town official dismissed the citation. The complaint alleges that LaCroix intends to carry portable signs sharing his religious message in the future, the same behavior that earned him a citation in the first place. D.E. 10 ¶ 36.
LaCroix sued the Town and Officers Stout and Tucci in the Middle District of Florida, alleging violations of the First Amendment, Equal Protection Clause, and Florida's Religious Freedom Restoration Act. He moved the district court for preliminary injunctive relief. But the district court denied his application, concluding that the Ordinance was content-neutral and that it was justified by the Town's interests in aesthetics and traffic safety. The district court further concluded that LaCroix's unbridled discretion claim failed because "the Town's ban on portable signs is not a licensing or permitting scheme that grants Town officials with discretion [to] allow or disallow speech." Finally, the district court rejected LaCroix's Equal Protection "class-of-one" claim.
LaCroix timely filed this interlocutory appeal.
We review a district court's order denying a preliminary injunction for abuse of discretion, Siegel v. LePore , 234 F.3d 1163, 1175 (11th Cir. 2000) (en banc), and its legal conclusions de novo. Keister v. Bell , 879 F.3d 1282, 1287 (11th Cir. 2018). And we review a district court's findings of "historical facts"--the who, what, when, where, and how--for clear error, but its findings of "constitutional facts" de novo. Id. (citing Booth v. Pasco Cnty. , 757 F.3d 1198, 1210 (11th Cir. 2014) ).
We begin, as we must, with a question about our power to hear this case. Despite the dismissal of his citation, the district court concluded LaCroix had standing to sue because he clearly alleged that he intended to speak again using a handheld placard in public places in Fort Myers Beach, that he intended to do so in the same location where he had been cited, and that he "is fearful of future repeated citation and fines for exercising his constitutional and civil rights." LaCroix has said enough to establish Article III standing.
LaCroix must sufficiently allege (1) an injury in fact, (2) a sufficient causal connection between the injury and the conduct complained of, and (3) a likelihood that the injury will be redressed by a favorable decision. Susan B. Anthony List v. Driehaus , 573 U.S. 149, 157–58, 134 S.Ct. 2334, 189 L.Ed.2d 246 (2014) (quotation marks omitted). Although LaCroix's citation was dismissed, he may still establish an injury-in-fact by showing that threatened enforcement is sufficiently imminent.
"Specifically, [the Supreme Court has] held that a plaintiff satisfies the injury-in-fact requirement where he alleges an intention to engage in a course of conduct arguably affected with a constitutional interest, but proscribed by a statute, and there exists a credible threat of prosecution thereunder." Id. at 159, 134 S.Ct. 2334 (quotation marks omitted). LaCroix has alleged a credible threat of enforcement.
In Steffel v. Thompson , a plaintiff was warned to stop hand-billing and threatened with prosecution by the state if he disobeyed. 415 U.S. 452, 455–56, 94 S.Ct. 1209, 39 L.Ed.2d 505 (1974). Steffel stated his intention to continue handbilling (an activity he claimed was constitutionally protected); and his companion's prosecution showed that his "concern with arrest" was not "chimerical." Id. at 459, 94 S.Ct. 1209. The Supreme Court concluded the plaintiff had standing. Id. at 460, 94 S.Ct. 1209. Here, too, LaCroix has been cited for engaging in the very behavior he intends to repeat on the streets of the Town. The Town's past conduct and its threat of future enforcement is enough to meet the injury-in-fact requirement; and the other standing elements are not in dispute.
LaCroix lodges both a facial and an as-applied First Amendment challenge to the Ordinance.1 He references the Free Exercise and Free Speech Clauses in separate claims, but we treat them together because Supreme Court "precedent establishes that private religious speech, far from being a First Amendment orphan, is as fully protected under the Free Speech Clause as secular private expression." Capitol Square Rev. & Advisory Bd. v. Pinette , 515 U.S. 753, 760, 115 S.Ct. 2440, 132 L.Ed.2d 650 (1995).
First, LaCroix claims the district court erred in concluding that the portable sign ban contained in the Ordinance is content-neutral. Instead, he says section 30-5(18) is content-based and subject to strict-scrutiny. "The principal inquiry in determining content neutrality, in speech cases generally and in time, place, or manner cases in particular, is whether the government has adopted a regulation of speech because of disagreement with the message it conveys." Ward v. Rock Against Racism , 491 U.S. 781, 791, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989). See also City of Austin v. Reagan Nat'l Advert. of Austin, LLC , ––– U.S. ––––, 142 S. Ct. 1464, 1473–74, ––– L.Ed.2d –––– (2022). As we see it, the district court got this issue right because all portable signs are prohibited, irrespective of the message they convey. The flat prohibition on portable signs is content-neutral.
We begin with the text of the Ordinance. Portable signs are defined as "any moveable sign not permanently attached to the ground or a building." Ordinance § 30-2. The Ordinance...
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