Messer v. City of Douglasville, Ga., 91-8941

• Decision Date: 22 October 1992
• Docket Number: No. 91-8941,91-8941
• Citation: 975 F.2d 1505
• Parties: James G. MESSER, Plaintiff-Appellant, v. CITY OF DOUGLASVILLE, GEORGIA, a political subdivision of the State of Georgia, Defendant-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1505

975 F.2d 1505

James G. MESSER, Plaintiff-Appellant, v. CITY OF DOUGLASVILLE, GEORGIA, a political subdivision of the State of Georgia, Defendant-Appellee.

No. 91-8941.

United States Court of Appeals Eleventh Circuit.

Oct. 22, 1992.

David H. Flint, Mark W. Forsling, Schreeder Wheeler & Flint, Atlanta, Ga., for plaintiff-appellant.

Joel Eugene Dodson, Dodson & Emerson, Douglasville, Ga., Frank E. Jenkins, III, Kirk Randall Fjelstul, Mary Frances O'Malley, Atlanta, Ga., for defendant-appellee.

Appeal from the United States District Court for the Northern District of Georgia.

Before DUBINA, Circuit Judge, and HILL and CLARK, Senior Circuit Judges.

CLARK, Senior Circuit Judge:

This case concerns the constitutionality of various aspects of the sign ordinance of the City of Douglasville. For the reasons stated below, we affirm the district court in finding the ordinance constitutional.

I. FACTS AND PROCEDURAL BACKGROUND

The plaintiff, James Messer, owns an automobile paint and body shop within the historic district of Douglasville, Georgia. In 1988, he leased rights to construct a billboard on his property to Adams Outdoor Advertising of Atlanta, Inc. ("Adams") an outdoor advertiser, Jimbo Displays, Inc. ("Jimbo") and Holland Outdoor Displays, Inc. ("Holland") companies that construct and erect outdoor advertising signs, or billboards. Jimbo obtained a permit from the City of Douglasville for an off-premise billboard on a specific site. The permit was to expire on August 13, 1989. Jimbo and Holland then erected the billboard but 30 feet off the site approved by the city.

On April 17, 1989, the City of Douglasville enacted a sign ordinance prohibiting off-premise signs in the historic district of Douglasville. Subsequent to the enactment of the ordinance, the city became aware that the sign on Messer's property was not at the approved site. It informed Jimbo and Holland that the existing sign was not permitted and therefore could not continue in existence as a non-conforming sign. A new permit could not be issued because of the new ordinance.

Jimbo and Holland requested a hearing before the Board of Adjustments and Appeals, asking that the sign be permitted. The Board affirmed the decision of the building officer denying the permit on April 6, 1990. Two months later, on July 10, 1990, Adams contracted with Jimbo and Holland to purchase the sign located on Messer's property, and entered into a lease agreement with Messer contingent on the results of this action.

Two days later, on July 12, 1990, Messer, Holland, Jimbo and Adams filed this § 1983 suit against the City of Douglasville, alleging the prohibition of off-premise advertising in the historic district of the City of Douglasville and other aspects of the City's sign ordinance violates the First Amendment and the Equal Protection Clause of the Fourteenth Amendment. Pursuant to a subsequent consent order, the district court dismissed Adams, Jimbo and Holland with prejudice, leaving Messer to prosecute this action alone.

Messer challenged five aspects of Douglasville's sign ordinance. The relevant portions of the Douglasville sign ordinance are set out in the margin infra. First, Messer argued that the section of the ordinance allowing only on-premise signs and disallowing off-premise signs in the historic district of Douglasville impermissibly favored commercial over noncommercial speech in that district. Second, he argued that because an ordinance covering the entire city of Douglasville allowed exemptions for certain types of signs from the permit requirements and not others, it was not content neutral in its regulation of noncommercial speech. Third, he asserted that the temporary permit provisions mandating cash bonds from persons seeking to put up temporary signs favored commercial over political speech. Fourth, he contended that the portable display provisions of the ordinance violated the First Amendment. Finally, he argued that the variance powers invested in the city's Board of Appeals and Adjustments violated due process.

In an order dated June 26, 1991, the district court granted summary judgment to the city on the first issue. It held that the ordinance did not impermissibly favor commercial over non-commercial speech by allowing on-premise signs but not off-premise signs. The court found that Messer did not have standing to challenge the variance powers of the Board of Appeals, as he suffered no real injury, and had not asked the Board for a hearing. The only hearing that took place had been requested by Mr. Holland on behalf of Jimbo and Holland, the billboard corporations.

In an order filed September 25, 1991, the district court granted summary judgment to the City on the remaining issues. It found that the exemptions to the permit requirements did not violate the First Amendment because they were not restrictions on commercial speech. The temporary permit provisions were also constitutional as they were not substantially broader than necessary to achieve the government's aesthetic interest in prompt removal of the signs. The portable display provisions were also constitutional as they were rationally related to the government's interest in the aesthetics of the city.

II. DISCUSSION

A. Off-premise signs

The Douglasville sign code prohibits off-premise signs ¹ throughout the historic district of the City of Douglasville, ² and in various specific locations. ³ In addition to challenging the ordinance relating to off-premise signs in the Historic District, Messer argues that the regulations in Secs. 26-7, 26-8(b)(6) and (c)(3), (5), (6), (9) and (10) of the Douglasville Code unconstitutionally favor commercial over noncommercial speech.

1. The Historic District of Douglasville

There is a complete ban on off-premise signs in the historic district in the City of Douglasville. Appellant Messer argues that this ordinance favoring on-premise over off-premise signs also favors commercial speech over noncommercial speech, thus violating the First Amendment as interpreted by Metromedia, Inc. v. San Diego, 453 U.S. 490, 101 S.Ct. 2882, 69 L.Ed.2d 800 (1981).

The Metromedia plurality held that regulation favoring on-site commercial advertising over off-site commercial advertising was permissible, but regulation favoring on-site commercial over non-commercial speech was impermissible. Metromedia, 453 U.S. at 511-12, 101 S.Ct. at 2894-95. A landowner or commercial enterprise has much more significant interest in identifying or advertising its own business or products than in advertising the products of others. Thus, a governmental entity may restrict the landowner's interest in advertising the products of others in the interests of aesthetics and safety, while leaving the landowner's interest in advertising its own business intact. However, this does not justify disallowing noncommercial billboards where commercial billboards are allowed. The court stated:

The fact that the city may value commercial messages relating to onsite goods and services more than it values commercial communications relating to offsite goods and services does not justify prohibiting an occupant from displaying its own ideas or those of others.

....

Insofar as the city tolerates billboards at all, it cannot choose to limit their contents to commercial messages; the city may not conclude that the communication of commercial information concerning goods and services connected with a particular site is of greater value than the communication of noncommercial messages.

Metromedia, 453 U.S. at 513, 101 S.Ct. at 2895.

The Court, however, did not distinguish between onsite and offsite noncommercial messages. Thus, it did not directly address the question now before us: whether a regulation allowing onsite noncommercial signs while denying offsite noncommercial signs would be constitutionally permissible.

We must first decide whether such an ordinance seeks to regulate speech according to its content. It is well settled that "the First Amendment forbids the government to regulate speech in ways that favor some viewpoints or ideas at the expense of others." Members of City Council v. Taxpayers for Vincent, 466 U.S. 789, 804, 104 S.Ct. 2118, 2128, 80 L.Ed.2d 772 (1984). In Vincent, the Court ruled the sign ordinance at issue "viewpoint neutral" as

[T]here is not even a hint of bias or censorship in the City's enactment of enforcement of this ordinance. There is no claim that the ordinance was designed to suppress certain ideas that the City finds distasteful or that it has been applied to appellees because of the views that they express. The test of the ordinance is neutral--indeed it is silent--concerning any speaker's point of view.

Vincent, 466 U.S. at 804, 104 S.Ct. at 2128 (citations omitted).

We find that the City of Douglasville's sign ordinance prohibiting off-premise billboards is similarly viewpoint neutral. It regulates signs not based on the viewpoint of the speaker, but based on the location of the signs. There is no claim of bias, censorship or preference regarding a speaker's point of view. The ordinance does not favor commercial over non-commercial speech; neither does it favor non-commercial over commercial speech. Contrary to Messer's argument, there is simply no basis for equating on-premise signs with commercial speech, and off-premise signs with noncommercial speech. A noncommercial enterprise would be able to put up a sign bearing a noncommercial message as long as it relates to any activity on the premises. Similarly, a commercial enterprise would be able to put up a sign bearing a noncommercial message which related to any activity on the premises. For example, an auto mechanic's garage would be able to put up a noncommercial message relating to the recycling of used motor oil. Accord Wheeler v. Commissioner of Highways, 822 F.2d 586, 591 (6th Cir.1987), cert. denied, 484 U.S. 1007, 108 S.Ct. 702, 98 L.Ed.2d 653 (1988) (a...