Lockridge v. City of Oldsmar, Fla.

• Decision Date: 27 February 2007
• Docket Number: No. 8:03-CV-1246-JDW-EAJ.,8:03-CV-1246-JDW-EAJ.
• Parties: Bill LOCKRIDGE d/b/a Loa Outdoor Advertising d/b/a Lockridge Outdoor Advertising Agency, Plaintiff, v. CITY OF OLDSMAR, FLORIDA, Defendant.
• Court: U.S. District Court — Middle District of Florida

475 F.Supp.2d 1240

Bill LOCKRIDGE d/b/a Loa Outdoor Advertising d/b/a Lockridge Outdoor Advertising Agency, Plaintiff, v. CITY OF OLDSMAR, FLORIDA, Defendant.

No. 8:03-CV-1246-JDW-EAJ.

United States District Court, M.D. Florida, Tampa Division.

February 27, 2007.

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E. Adam Webb, William E. Porter, Webb & Porter, L.L.C., Atlanta, GA, Brooks C. Rathet, William L. Bromagen, P.A., Jacksonville Beach, FL, for Plaintiff.

William David Brinton, Cristine M. Russell, Jacksonville, FL, Shauna F. Morris, Frazer Hubbard Brandt, Trask & Yacavone, Dunedin, FL, for Defendant.

ORDER

WHITTEMORE, District Judge.

BEFORE THE COURT is Defendant's Motion for Reconsideration (Dkt. 152), to which Plaintiff has responded in opposition (Dkt. 154). Both parties have been given leave to file supplemental authority (Dkts. 160, 163, 165, 170, 172, 176, 179), and the Court heard the parties' oral argument on October 31, 2006 (Dkt. 177). In this motion, Defendant asks the Court to reconsider its September 27, 2005 order granting Plaintiffs partial motion for summary judgment and denying Defendant's motion for summary judgment (Dkt. 134), in light of an intervening change in controlling law.

Plaintiff brought the instant action claiming multiple provisions of Defendant's sign ordinance violated the First Amendment. In its motion for summary judgment, Defendant argued that Plaintiff could only challenge section 13.3.3(3) of the sign ordinance, the specific provision under which its applications were denied. The Court, bound by the Eleventh Circuit's application of the overbreadth doctrine in Tanner Advertising Group, L.L.C. v. Fayette County, 411 F.3d 1272 (11th Cir.2005), held that Plaintiff did have standing to challenge the entire ordinance. The Court found that portions of the ordinance were impermissible content-based restrictions on speech and accordingly granted Plaintiffs partial motion for summary judgment and denied Defendant's motion for summary judgment.

In its motion for reconsideration, Defendant argues that the Court should reconsider its Order based on an intervening change in controlling law. On November 1, 2005, the Eleventh Circuit vacated its opinion in Tanner Advertising and granted rehearing. Tanner Adver. Group, L.L.C. v. Fayette County, 429 F.3d 1012 (11th Cir.2005). The Eleventh Circuit issued a new decision in Tanner Advertising on June 9, 2006, Tanner Adver. Group, L.L.C. v. Fayette County, 451 F.3d 777, 791 (11th Cir.2006), and subsequently issued a series of opinions addressing standing in sign ordinance cases. Defendant argues that pursuant to these cases, Plaintiff can only challenge section 13.3.3(3) of the ordinance, while Plaintiff argues that the new case law serves only to confirm the Court's previous decision on standing in this case.

Based on the intervening change in controlling law, the Court finds that Plaintiff does not have standing to challenge the sign ordinance in its entirety. Defendant's motion for reconsideration is accordingly granted, and the Court contemporaneously issues an Amended Order on the parties' cross-motions for summary judgment. Accordingly, it is

ORDERED and ADJUDGED that Defendant's Motion for Reconsideration (Dkt. 152) is GRANTED.

AMENDED ORDER¹

BEFORE THE COURT are: 1) Plaintiffs Motion for Partial Summary Judgment (Dkts. 69, 70), to which Defendant has responded in opposition (Dkt. 78); and 2) Defendant's Motion for Summary Judgment (Dkt. 83, 84), to which Plaintiff has responded in opposition (Dkt. 92). In addition, the Court considers the arguments set forth in Defendant's Motion for Reconsideration (Dkt. 152), Plaintiffs response in opposition (Dkt. 154), the parties' supplemental authority (Dkts. 160, 163, 165, 170, 172, 176, 179), and oral argument on October 31, 2006 (Dkt. 177). Upon reconsideration, Plaintiffs Motion for Partial Summary Judgment (Dkt. 69) is DENIED, and Defendant's Motion for Summary Judgment (Dkt. 83) is GRANTED.

Background

On May 29, 2003, Plaintiff, Bill Lockridge d/b/a LOA Outdoor Advertising d/b/a Lockridge Outdoor Advertising Agency, filed applications with Defendant, City of Oldsmar, for permits for the erection of nine commercial billboards. (Dkt. 84, App.41). On May 30, 2003, the applications were denied based upon § 13.3.3(3) of Defendant's Sign Regulations ("ordinance") set forth in Article XIII of the City's Land Development Code ("LDC"), which specifically prohibited billboards. (Dkt. 84, App.9, Ex. 9).

As of the date of Plaintiffs applications, Article II of the LDC defined a billboard as: "A non-point-of-sale sign which advertises a business, organization, event, person, place or thing, unless such sign is more specifically defined herein." (Dkt. 84, App. 10 at 2). Section 13.3.3(3) of the ordinance provided: "Prohibited signs: Off-premise signs, including billboard signs, except where specifically provided for elsewhere in this Article." (Dkt. 1, Ex. 1 at 4-5). Section 13.1.2(3) provided: "It is the intention of this Article ... To prohibit all signs not expressly permitted." (Dkt. 1, Ex. 1 at 2). Pursuant to § 13.1.1, the purposes of the ordinance are:

to encourage the effective use of signs as a means of communication in the City; to maintain and enhance the aesthetic environment and the City's ability to attract and maintain sources of economic development; to improve pedestrian and traffic safety; to minimize the possible adverse effect of signs on nearby public and private property; to ensure that signs are constructed, installed and maintained in a safe and satisfactory manner, and to enable the fair and consistent enforcement of this Article. (Dkt. 1, Ex. 1 at 2).

On June 16, 2003, Plaintiff filed this suit against Defendant, challenging the rejection of his applications and the constitutionality of the ordinance. (Dkt. 1, Compl.). Plaintiff seeks injunctive relief in the form of an order declaring the ordinance unconstitutional and void and directing the grant of his applications and allowing erection of the requested billboards. (Dkt. 1). Plaintiff also seeks monetary damages associated with the denial of his applications based on the allegedly unconstitutional ordinance.² (Dkt. 1).

On June 15, 2004, Defendant repealed and amended portions of its LDC, including portions of Article II and Article XIII (Ordinance Nos.2004-09 and 2004-10). (Dkt. 31, Exs.1-2). Plaintiff challenges only the constitutionality of the former ordinance in this action. The new ordinance is not before this Court.³

On September 27, 2005, the Court granted Plaintiffs Partial Motion for Summary Judgment and denied Defendant's Motion for Summary Judgment. (Dkt. 134). The Court's assessment of Plaintiffs standing was premised on Tanner Advertising Group, L.L.C. v. Fayette County, 411 F.3d 1272 (11th Cir.2005), which was vacated subsequent to this Court's order. See Tanner Adver. Group, L.L.C. v. Fayette County, 429 F.3d 1012 (11th Cir.2005). In light of the Eleventh Circuit's revised holding in Tanner and subsequent Eleventh Circuit cases, this Court finds that Plaintiff has standing to challenge only section 13.3.3(3) of the ordinance. Further, this Court concludes that section 13.3.3(3) is constitutional.

Standard

Summary judgment is proper if following discovery, the pleadings, depositions, answers to interrogatories, affidavits and admissions on file show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Fed.R.Civ.P. 56. The Court must view all evidence and all factual inferences reasonably drawn from the evidence in the light most favorable to the nonmoving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970); Stewart v. Happy Herman's Cheshire Bridge, Inc., 117 F.3d 1278, 1285 (11th Cir.1997). Judgment in favor of a party is proper where there is no legally sufficient evidentiary basis for a reasonable jury to find for the nonmoving party on the issue before the Court. Fed. R.Civ.P. 56.

Discussion

The Court considers the threshold jurisdictional issues of standing and mootness before analyzing Plaintiffs constitutional claims. See Coral Springs Street Sys. v. City of Sunrise, 371 F.3d 1320, 1327 (11th Cir.2004).

I. Standing

To meet the constitutional requirements for standing, a plaintiff must show that: 1) it suffered or is immediately likely to suffer an injury in fact; 2) a causal connection exists between the injury and the alleged conduct; and 3) there is a likelihood that a favorable judicial decision will redress the injury. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). Injury in fact means that the plaintiff has suffered or is likely to suffer an injury that amounts to "an invasion of a legally protected interest" which is "concrete and particularized" and "actual or imminent," rather than "conjectural or hypothetical," and that affects the plaintiff in a "personal and individual way." Lujan, 504 U.S. at 560-561, 112 S.Ct. 2130 (quotations and citations omitted). Causal connection between the injury and the conduct complained of means that the injury is "fairly traceable to the challenged action of the defendant, and not the result of the independent action of some third party not before the court." Lujan, 504 U.S. at 560, 112 S.Ct. 2130 (quotations and citations omitted). Lastly, it must be "likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision." Lujan, 504 U.S. at 561, 112 S.Ct. 2130 (quotations and citations omitted).

A. Application of the Overbreadth Doctrine

As discussed below, Plaintiff has standing to bring both a facial and an as-applied challenge to section 13.3.3(3) of Defendant's ordinance, because that section is the specific provision under which Plaintiffs applications to...