Maverick Media Group v. Hillsborough County, Fla.
| Decision Date | 16 May 2007 |
| Docket Number | No. 8:02-cv-947-T-23TBM.,8:02-cv-947-T-23TBM. |
| Citation | 508 F.Supp.2d 1126 |
| Parties | MAVERICK MEDIA GROUP, INC., et al., Plaintiffs, v. HILLSBOROUGH COUNTY, FLORIDA, Defendant. |
| Court | U.S. District Court — Middle District of Florida |
E. Adam Webb, Webb & Porter, L.L.C., Sean R. Smith, Dow, Lohnes & Albertson, PLLC, Atlanta, GA, Kent G. Whittemore, The Whittemore Law Group, P.A., St. Petersburg, FL, for Plaintiffs.
Stephen M. Todd, Tampa, FL, for Defendant.
Pursuant to 28 U.S.C. § 636 and Local Rule 6.01(b), the court referred the parties' cross-motions for summary judgment (Docs. 91, 92) to the United States Magistrate Judge for a report and recommendation. Following the Magistrate Judge's March 9, 2007, report and recommendation (Doc. 134), the plaintiffs object (Doc. 136) and the defendant responds (Doc. 142) in opposition to the objections.
A de novo determination of those portions of the report and recommendation to which the plaintiffs object reveals that the objections either are unfounded or otherwise require no different resolution of the motions. Accordingly, the plaintiffs objections (Doc. 136) are OVERRULED and the Magistrate Judge's report and recommendation (Doc. 134) is ADOPTED. The plaintiffs' motion (Doc. 91) for partial summary judgment is DENIED and the defendant's motion (Doc. '92) for summary judgment is GRANTED. The Clerk is directed to enter judgment in favor of the defendant and against the plaintiffs and close the case.
ORDERED.
THIS MATTER is before the court upon referral from the Honorable Steven D. Merryday for a Report and Recommendation on the parties' cross-motions for summary judgment: Plaintiffs' Motion for Partial Summary Judgment (Doc. 91) and Memorandum of Law in Support (Doc. 93) and Defendant's response (Doc. 96), and Hillsborough County's Motion for Summary Judgment Against Plaintiff's Amended Complaint (Doc. 92) and Plaintiffs' response (Doc. 97). The parties have filed affidavits, excerpts of depositions, declarations, and other documentary evidence in support of their positions.1 See (Docs. 92-94, 97, 99, 118). They have also filed supplements to their cross-motions for summary judgment in which they address the import of recent Eleventh Circuit authority. See (Does. 118-19).
By their motion, Plaintiffs seek summary judgment as to all-claims except the appropriate amount of damages and attorney's fees. Generally, Plaintiffs allege that the Defendant has wrongfully rejected or otherwise ignored numerous applications to post signs in Hillsborough County, Florida, on the basis of invalid sign regulations. They seek an Order directing the Defendant to permit the posting of the requested signs and damages for the Defendant's infringement of their First and Fourteenth Amendment rights. By its response and its cross-motion, Hillsborough County asserts that Plaintiffs have no standing to bring the bulk of their claims, and in any event, the claims are moot by reason of the adoption of new sign regulations in November 2004. Even if the Plaintiffs have standing and the claims have not been rendered moot by the new regulations, Hillsborough County asserts that each of Plaintiffs' claims fail as a matter of law.
Maverick Media Group, Inc. (hereinafter "Maverick" or "Plaintiff"), is a corporation licensed to do business in the State of Florida and is headquartered in Hillsborough County, Florida. It is an outdoor advertising business that buys and leases land upon which to construct signs used for the dissemination of both commercial and non-commercial speech. Individual Plaintiffs, Rick Bateman, Harold Gallup, and Gil Manter are residents of Hillsborough County and owners of Maverick.2 Hillsborough County, Florida (hereinafter "Defendant" or "County"), is a political subdivision of the State of Florida.
The essential facts are not disputed. In 2002 and early 2003, Maverick submitted applications for signs to be posted in Hillsborough County. None of the applications were granted; some were denied, and others received no response from the County. The applications were reviewed, if at all, and processed under the County sign ordinance, Ordinance 85-19, first adopted in May 1985. Pertinent to this case, the stated intent of the sign ordinance was to prohibit the future erection of billboards and "off-site signs" as such were determined to be "detrimental to the aesthetic sense and public health, safety and general welfare of the citizens of Hillsborough County." The ordinance provided for an amortization period for existing signs to either achieve compliance with the ordinance or be removed. Ordinance 85-19 was later incorporated into the County's Land Development Code (Ordinance 92-5 as amended). The sign ordinance was thereafter referenced as the "sign regulations."
Maverick alleges that since at least 1999, it has sought to post advertising signs in Hillsborough County. In late 2000 or early 2001, Maverick learned that the County was contemplating reaching agreements with Clear Channel Outdoor (f/k/a Eller Media Company) and Viacom Outdoor (f/k/a Infinity Outdoor). Maverick sought to engage the County in discussions to provide it with similar opportunities to erect new signs in the County. In 2001, the County entered into settlement agreements with both of the above-mentioned companies, generally allowing them to retain billboards that existed and were legally permitted prior to 1985.3 The settlement agreements also permitted the relocation of these billboards, but prohibited the companies from having more billboards than existed and were legally permitted prior to 1985.4 Discussions with Maverick continued, but ultimately a proposed agreement was quashed by the County Commission.
On May 15, 2002, Maverick submitted to the County twenty applications for permits to post signs. Ms. Kim King, a senior planning zoning technician for the County, denied each of Maverick's applications that same day on the ground that they were for prohibited off-site signs or billboard signs.5 Ms. King also advised Maverick's representatives that the applications were denied because there was no letter of authorization from a certified contractor. By Ms. King's account, she advised Maverick that, in addition to being incomplete, their applications would not be accepted because they were for prohibited billboard and offsite signs. According to her, it was the County's policy not to accept an application for a sign permit if it sought a type of sign prohibited under the sign regulations. No written denial was provided to Maverick. When asked for a written explanation of denial, Ms. King advised Maverick's representatives that she could not provide one and they would have to speak with her manager. She later testified that it was not the County's normal practice to provide an explanation in writing for those things that constituted a prohibited use under the Land Development Code.
On the following day, May 16, 2002, Maverick's representatives returned with proof that they had obtained a certified local contractor to erect the proposed signs. Mike Allgire, Ms. King's supervisor and the manager of the permits intake processing section for the County's planning and zoning division, met with Maverick's representatives and informed them that their sign applications would still not be accepted because they sought off-site signs and billboard signs, which were expressly prohibited under the sign regulations. Although Mr. Allgire did not recollect whether Maverick's representatives had requested that he provide a written denial, he indicated that he would have refused to do so had they asked. By Maverick's representation, Mr. Allgire refused to put the denials in writing.6
On May 23, 2002, Maverick submitted ten additional applications for permits to post signs, all of which were denied. It appears undisputed that all the applications were for off-site advertising billboards.7 The circumstances of the denial or the refusal to accept is somewhat disputed. According to Maverick, their applications were complete but were denied (not accepted) by Harry Heuman, the principal planner in the County's development services division, for the stated reason that signs with off-site messages were prohibited. At a deposition in March 2005, Mr. Heuman could not recall any specifics from May 2002. In connection with this litigation, in August 2004, Mr. Heuman submitted an affidavit stating he had reviewed the sign permit applications submitted by Maverick and concluded they were incomplete and lacked essential requirements under § 4.1.9 of the County's Development Review Procedures Manual, and thus, "a meaningful review of the applications [was] not possible because the sign applications submitted by Maverick, [were] incomplete." In any event, no permits were granted and Plaintiffs were not previously advised that the pending applications were denied.
Maverick did not appeal these denials, ostensibly because they were not in writing.
On May 30, 2002, Maverick initiated this action.
In July 2002, Maverick submitted approximately seventeen additional sign application packages. Ms. King accepted Maverick's applications. By Maverick's account, it was notified some forty-six to fifty-two days after submitting the applications that the applications were incomplete. Maverick subsequently resubmitted the applications, and it has yet to receive a response from the County. Ms. King claims little recollection of what occurred.8 At deposition, she identified nineteen letters from September 2002, which were sent to the licensed contractors who applied for Maverick's permits, notifying them why the permits were not issued. It is Ms. King's recollection that a female representative of Maverick came into the office and completed the missing information. Regardless...
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