Lamar Advertising v. City of Douglasville, Georgia, CIV.A. 102CV1554-BBM.

Citation254 F.Supp.2d 1321
Decision Date04 April 2003
Docket NumberNo. CIV.A. 102CV1554-BBM.,CIV.A. 102CV1554-BBM.
PartiesLAMAR ADVERTISING COMPANY, Plaintiff, v. CITY OF DOUGLASVILLE, GEORGIA, Defendant.
CourtUnited States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Northern District of Georgia

Edward Adam Webb, Webb & Porter, Atlanta, GA, for Lamar Advertisiing Company, plaintiff.

Suzan Goodson Littlefield, Office of Suzan G. Littlefield, Joel Eugene Dodson, Office of Joel E. Dodson, Douglasville, GA, Laurel E. Henderson, Office of Laurel E. Henderson, Decatur, GA, for City of Douglasville, Georgia, defendant.

ORDER

MARTIN, District Judge.

This action, challenging the constitutionality of the City of Douglasville's sign ordinance, is before the court on: (1) the plaintiffs motion for partial summary judgment [Doc. No. 11-1]; (2) the plaintiffs motion for a preliminary injunction [Doc. No. 12-1]; (3) the plaintiffs motion for a permanent injunction [Doc. No. 12-2]; (4) the defendant's motion for summary judgment [Doc. No. 13-1]; (5) the defendant's motion for hearing [Doc. No. 16-1]; and (6) the plaintiffs motion for consideration of delayed filing [Doc. No. 20-1].

I. Factual and Procedural Background

In this action, the plaintiff, Lamar Advertising Company ("Lamar"), challenges the City of Douglasville's ("Douglasville" or "the City") sign ordinance as an unconstitutional restriction on the freedom of speech. Under the City's current sign ordinance, most signs must be permitted prior to display. To obtain a permit, a party must submit an application to the City. Lamar, a company in the business of buying or leasing land upon which to construct signs containing commercial and noncommercial messages, asserts that it has submitted several applications for sign permits to Douglasville authorities. However, each of these applications has been denied. Although the parties dispute the reason for the denial, no one disputes the fact that Lamar cannot lawfully erect its desired signs given the language of the current ordinance.

In order to challenge Douglasville's ordinance, Lamar filed the instant lawsuit. After some discovery, on February 10, 2003, Lamar filed a motion for summary judgment. Therein, Lamar presents a facial challenge to the constitutionality of the Douglasville sign ordinance. On the same day it filed the summary judgment motion, Lamar also moved for a preliminary or permanent injunction to prevent the City from enforcing its allegedly unconstitutional sign regulations. In response, Douglasville filed a cross-motion for summary judgment, asserting that its sign ordinance is constitutional. However, on March 17, 2003, after the parties filed their cross-motions for summary judgment, the Douglasville City Council amended the City's sign ordinance, making some significant changes. In light of these revisions, the court now addresses the outstanding motions.

II. Summary Judgment Standard

Summary judgment is proper "if ... there is no genuine issue as to any material fact" and "the moving party is entitled to judgment as a matter of law." Fed. R.Civ.P. 56(c). In considering a motion for summary judgment, "[t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his [or her] favor." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The court is mindful that "[credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge." Id. In this case, both parties believe that summary judgment is a proper vehicle to resolve their dispute.

III. Facial Challenge to Ordinance

To begin with, the court notes that Lamar raises a facial challenge to the Douglasville sign ordinance.1 A facial challenge, as distinguished from an asapplied challenge, seeks to invalidate a statute or regulation itself. Horton v. City of St. Augustine, 272 F.3d 1318, 1329 (11th Cir.2001); Naturist Soc, Inc. v. Fillyaw, 958 F.2d 1515, 1521 (11th Cir.1992). Although facial challenges are generally disfavored, they are permitted where a licensing scheme vests unbridled discretion in a decisionmaker. FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 223, 110 S.Ct. 596, 107 L.Ed.2d 603 (1990). Accordingly, the Supreme Court has allowed those who have not applied for licenses to facially challenge licensing statutes, where those statutes effectively provide public officials the power to censor free expression based on the content of the speaker's planned message.2 United States v. Frandsen, 212 F.3d 1231, 1235-36 (11th Cir.2000); Abramson v. Gonzalez, 949 F.2d 1567, 1572-73 (11th Cir.1992). The use of signs, containing both commercial and noncommercial speech, is an important method of free expression. City of Ladue v. Gilleo, 512 U.S. 43, 114 S.Ct. 2038,129 L.Ed.2d 36 (1994); Messer v. City of Douglasville, 975 F.2d 1505 (11th Cir.1992). The Supreme Court has recognized that parties, such as Lamar, with a commercial interest in speech may facially challenge an ordinance, raising the noncommercial speech interests of third parties. Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 504 n. 11, 101 S.Ct. 2882, 69 L.Ed.2d 800 (1981). In this special First Amendment context, even the City concedes that Lamar has "standing to challenge the entire ordinance." Def.'s Opp'n Mem., p. 15. Because, in the instant lawsuit, Lamar asserts that Douglasville's licensing statute vests unbridled discretion in city officials to permit or deny expressive activity, Lamar has standing to challenge Douglasville's ordinance on its face.3 City of Lakewood, 486 U.S. at 755, 108 S.Ct. 2138.

IV. First Amendment Analysis

According to the First Amendment, the government "shall make no law ... abridging the freedom of speech ...." U.S. Const, amend. I. Because of this fundamental right to freedom of speech, state and local governments must carefully craft any law that constitutes a "prior restraint" on speech. Frandsen, 212 F.3d at 1236-37. Defining prior restraint as a regulation that allows the government to "deny access to a forum for expression before the expression occurs," the Eleventh Circuit recognizes licensing schemes as one form of prior restraint. Id.; Lady J. Lingerie, Inc. v. City of Jacksonville, 176 F.3d 1358, 1361 (11th Cir.1999). Although a prior restraint, such as a licensing scheme, is not per se unconstitutional, any system of prior restraint carries "a heavy presumption against its constitutional validity." Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 558, 95 S.Ct. 1239, 43 L.Ed.2d 448 (1975). However, systems of prior restraint limiting noncommercial speech will be upheld as constitutional, if they constitute content-neutral time, place, and manner regulations. Thomas v. Chicago Park Dist, 534 U.S. 316, 322-24,122 S.Ct. 775,151 L.Ed.2d 783 (2002).

In section 3.75.01(a) of Douglasville's sign ordinance, the City provides that "no sign shall be erected, reconstructed, expanded, or replaced without securing a permit from the director of planning and zoning ...." Douglasville, Ga., Zoning Ord., § 3.75.01(a). To obtain a permit, an interested party must submit an application to the director of planning and zoning. Id. at § 3.75.03. The director is then responsible for granting or denying a permit. As such, the Douglasville sign ordinance is, at its heart, a licensing scheme. See Messer, 975 F.2d at 1505. Because the Douglasville ordinance qualifies as a licensing scheme regulating both commercial and noncommercial speech, the court must determine if it is a constitutional prior restraint on speech.

A. Unbridled Discretion

To comport with the First Amendment, permitting schemes affecting protected expression cannot place "unbridled discretion" in the hands of a government official. FW/PBS, Inc., 493 U.S. at 225-26, 110 S.Ct. 596; Thomas, 534 U.S. at 323-24, 122 S.Ct. 775. As early as 1958, the Supreme Court held that It is settled by a long line of recent decisions of this Court that an ordinance which ... makes the peaceful enjoyment of freedoms which the Constitution guarantees contingent upon the uncontrolled will of an official—as by requiring a permit or license which may be granted or withheld in the discretion of such official—is an unconstitutional censorship or prior restraint upon the enjoyment of those freedoms.

Shuttlesworth v. City of Birmingham, 394 U.S. 147, 151, 89 S.Ct. 935, 22 L.Ed.2d 162 (1969) (quoting Staub v. City of Baxley, 355 U.S. 313, 322, 78 S.Ct. 277, 2 L.Ed.2d 302 (1958)). To avoid unbridled discretion, "[a]n ordinance that gives public officials the power to decide whether to permit expressive activity must contain precise and objective criteria on which they must make their decisions." Lady J. Lingerie, Inc., 176 F.3d at 1361. These criteria must be "narrow, objective, and definite." Shuttlesworth, 394 U.S. at 151, 89 S.Ct. 935; see also Forsyth County v. Nationalist Movement, 505 U.S. 123, 132-33, 112 S.Ct. 2395, 120 L.Ed.2d 101. "[A]ny amount of discretion beyond the merely ministerial is suspect." Lady J. Lingerie, Inc., 176 F.3d at 1362.

Based on this standard, it is clear that some provisions of the Douglasville sign ordinance place unbridled discretion within the hands of the director of planning and zoning. Importantly, the Douglasville ordinance provides that a variety of signs are subject to blanket prohibition throughout the city. Douglasville, Ga., Zoning Ord., § 3.72.03. Signs prohibited in Douglasville include those imitating traffic signals, incorporating flashing lights, emitting sound, and constituting flags, banners, or portable display signs. Douglasville, Ga., Zoning Ord., § 3.72.03. However, some of these prohibited signs may be approved for display by the director of planning and zoning if "permitted as a temporary sign in a district where temporary signs are authorized." Id. The director of planning and zoning...

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