Lombardo v. Warner

• Decision Date: 29 December 2003
• Docket Number: No. 02-35269.,02-35269.
• Parties: James LOMBARDO, Plaintiff-Appellant, v. Bruce WARNER, in his official capacity as Director of the Oregon Department of Transportation, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

353 F.3d 774

James LOMBARDO, Plaintiff-Appellant, v. Bruce WARNER, in his official capacity as Director of the Oregon Department of Transportation, Defendant-Appellee.

No. 02-35269.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 2, 2003 — Seattle, Washington.

Filed December 29, 2003.

Alan R. Herson, Jacksonville, Oregon, for the Plaintiff-Appellant.

Janet A. Metcalf, Assistant Attorney General, Salem, Oregon, for the Defendant-Appellee.

Appeal from the United States District Court for the District of Oregon; Michael R. Hogan, District Judge, Presiding. D.C. No. CV 98-3001 MRH.

Before: Betty B. FLETCHER, Warren J. FERGUSON, and A. Wallace TASHIMA, Circuit Judges.

Opinion by Judge TASHIMA; Dissent by Judge B. FLETCHER.

OPINION

TASHIMA, Circuit Judge:

James Lombardo appeals the dismissal of his First Amendment and Due Process challenges to the highway billboard provisions of the Oregon Motorist Information Act ("OMIA"). He seeks declaratory and injunctive relief on two grounds: (1) that the OMIA is a content-based regulation that favors commercial over non-commercial speech; and (2) that the OMIA vests unbridled discretion in state officials and lacks necessary procedural safeguards.¹ We have jurisdiction pursuant to 28 U.S.C. § 1291, and we uphold the OMIA as a content-neutral time, place, and manner restriction.

BACKGROUND

Lombardo initially alleged that the OMIA violated his First Amendment rights by prohibiting him from displaying on his residence a 12-square-foot sign reading "For Peace in the Gulf." We remanded an earlier appeal in 1999 when Oregon revised the OMIA to permit signs not exceeding 12 square feet. On remand, Lombardo amended his complaint under 42 U.S.C. § 1983 to allege that the OMIA violated his constitutional rights by preventing him from displaying a 32-square-foot sign reading "For Peace in the Gulf." Defendant moved to dismiss the amended complaint "for lack of standing and lack of a justiciable controversy, and failure to state a claim." A magistrate judge recommended that the action be dismissed because the OMIA equally burdens commercial and non-commercial speech and is not content based. The magistrate judge also recommended the dismissal of Lombardo's as applied challenge to the OMIA because Lombardo had not applied for a variance to display his sign. The district court adopted the magistrate judge's findings and recommendation, and dismissed the action. This timely appeal followed.

THE OMIA

The OMIA prohibits all "outdoor advertising signs" except those that existed in commercial or industrial zones prior to June 12, 1975. Or.Rev.Stat. § 377.715. The OMIA defines an "outdoor advertising sign" as:

[A] sign "designed, intended or used to advertise, inform or attract the attention of the public as to: (a) Goods, products or services which are not sold, manufactured or distributed on or from the premises on which the sign is located; (b) Facilities not located on the premises on which the sign is located; or (c) Activities not conducted on the premises on which the sign is located.

Id. at § 377.710(23). If a sign existed prior to June 12, 1975, the sign may remain provided a permit is obtained by the owner. Id. at §§ 377.712(1), 377.725(2) & (14).² Similar to other state billboard laws, the OMIA contains an exemption that permits "on-premises signs" that "attract... attention [to] [a]ctivities conducted on the premises on which the sign is located[.]" Id. at § 377.710(22). Thus, a sign is permissible without a permit or variance, irrespective of the commercial or non-commercial nature of the sign, if it identifies activities conducted on the premises. Also excepted from the general prohibition are "[t]emporary sign[s] on private property" not larger than 12 square feet, as well as "[s]igns of a governmental unit, including but not limited to traffic control or regulatory devices, legal notices, or warnings." Id. at § 377.735(1)(a), (b). The OMIA permits a party to obtain, "for good cause shown," a variance from the temporary sign restriction, including the temporary size limitation. Id. at § 377.735(2).

The OMIA specifically prohibits the Director of Transportation ("Director") from considering "the content of the sign in deciding whether to allow a variance." Id. Owners of non-compliant signs are subject to the following remedial procedures:

[I]f the owner of the sign is readily identified and located, the director shall notify the owner that the sign is in violation of ORS 377.700 to 377.840 and that the owner has 30 days from the date of the notice within which to make the sign comply, to remove the sign or to request a hearing before the director within the time specified in the notice.

Id. at § 377.775(3)(a). If the billboard owner does not follow one of these courses within 30 days, the Director can remove the sign, and the owner is liable for the associated costs. Id. at § 377.775(3)(b), (5). A non-compliant sign is declared a nuisance, and a person who violates any provision of the OMIA can be fined not more than $100 or imprisoned for not more than 30 days, or both. Id. at §§ 377.775(1), 377.992(1).

STANDARD OF REVIEW

A dismissal for failure to state a claim is reviewed de novo. Williamson v. Gen. Dynamics Corp., 208 F.3d 1144, 1149 (9th Cir.2000). The court must presume all factual allegations of the complaint to be true and draw all reasonable inferences in favor of the nonmoving party. Knevelbaard Dairies v. Kraft Foods, Inc., 232 F.3d 979, 984 (9th Cir.2000). A dismissal for failure to state a claim is appropriate only where it appears that the plaintiff can prove no set of facts that would entitle him to relief. Johnson v. Knowles, 113 F.3d 1114, 1117 (9th Cir.1997).

ANALYSIS

Lombardo contends that because the First Amendment prohibits laws that favor commercial over non-commercial speech he should be permitted to display a billboard reading "For Peace in the Gulf" because while the OMIA permits commercial establishments to display billboards advertising activities conducted on the premises, the OMIA prohibits him from freely expressing his own political beliefs outside his own home.³ We have rejected this same argument on at least two previous occasions. Clear Channel Outdoor Inc. v. City of Los Angeles, 340 F.3d 810, 813-14 (9th Cir. 2003); Outdoor Sys., Inc., v. City of Mesa, 997 F.2d 604, 609-612 (9th Cir.1993). We do so again here.

I.

In Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 515, 101 S.Ct. 2882, 69 L.Ed.2d 800 (1981), the Supreme Court declared unconstitutional a billboard ordinance that prohibited offsite signs but permitted onsite signs for commercial purposes. Writing for the plurality, Justice White set forth two standards by which to examine billboard regulations. Under the Metromedia standards, "an ordinance is invalid if it [1] imposes greater restrictions on non-commercial than on commercial billboards or [2] regulates non-commercial billboards based on their content." Nat'l Adver. Co. v. City of Orange, 861 F.2d 246, 248 (9th Cir.1988) (citing Metromedia, 453 U.S. at 513, 516, 101 S.Ct. 2882).

We have addressed the onsite/offsite distinction in a number of cases since Metromedia.⁴ We recently summarized this case law in Clear Channel, stating that the distinction between onsite and offsite signs contravenes Metromedia if the statute "prevent[s] the erection of onsite non-commercial signs." 340 F.3d at 814 (citing Ackerley Communications of the Northwest, Inc. v. Krochalis, 108 F.3d 1095 (9th Cir.1997), and Outdoor Sys., 997 F.2d 604). The Clear Channel court relied on Outdoor Systems in stating that the "key consideration is whether a sign ordinance is neutral with respect to non-commercial messages." Id. We stated that neutrality is maintained if the regulation allows non-commercial messages on either onsite or offsite signs. Id. We also reiterated the rule first expressed in Outdoor Systems that even if billboard regulations have a greater negative impact on non-commercial than commercial messages, the regulation does not have the "effect of preferring commercial speech," in violation of Metromedia, as long as non-commercial messages may be displayed on both onsite or offsite signs. Id. (citing Outdoor Sys., 997 F.2d at 612).

After summarizing the case law that has emerged since Metromedia, Clear Channel held that the billboard provisions in the Los Angeles Municipal Code ("LAMC"), did not violate plaintiff's free speech rights because the LAMC's distinction between offsite and onsite signs permitted both commercial and non-commercial messages. The LAMC (like the OMIA) defines an offsite sign in terms of a "sign which displays any message directing attention to a business, product, ... or any other commercial [or non-commercial] message, which is generally conducted, sold, manufactured, produced, offered or occurs elsewhere than on the premises where such sign is located." Id. at 812 (emphasis added) (quoting LAMC § 91.6203).⁵ The LAMC also provides the same exemption for onsite signs, requiring the billboard to display a message, commercial or non-commercial, that relates to conduct on the premises. Id.

Clear Channel is controlling. The primary argument raised by Lombardo is that the billboard law negatively affects non-commercial speech because fewer residents will be able to display signs that relate to activity conducted on the premises, whereas commercial establishments will be able to display their signs advertising their activity with relative ease. This argument fails under our precedent. In Outdoor Systems, we addressed the same contention, and stated that "[e]ven were the number of non-commercial signs to decrease disproportionately, the statute would not be invalid on that basis because the decrease would be the result of decisions made by individual sign owners." 997 F.2d at 612. Clear Channel reaffirmed this holding. 340 F.3d at 814. The OMIA defines on premises signs with...