National Advertising Co. v. City of Miami

Decision Date25 September 2003
Docket NumberNo. 01-3039-CIV.<SMALL><SUP>*</SUP></SMALL>,01-3039-CIV.<SMALL><SUP>*</SUP></SMALL>
Citation287 F.Supp.2d 1349
PartiesNATIONAL ADVERTISING CO., Plaintiff, v. CITY OF MIAMI, Defendant.
CourtU.S. District Court — Southern District of Florida

Thomas R. Julin, Esq., Hunton & Williams, Miami, FL, Counsel for Plaintiff.

Carol A. Licko, Esq., Hogan & Hartson, LLP, Miami, FL, Counsel for Defendant.



I. Factual Background

Plaintiff National Advertising Company is a Delaware corporation and a wholly owned subsidiary of Viacom Outdoor Inc., a corporation formerly known as Infinity Outdoor, Inc. National is in the business of erecting and maintaining billboard signs on property it leases. National maintains both commercial and noncommercial messages on billboards that are located throughout the City of Miami.

The City of Miami adopted, thirteen years ago on March 8, 1990, a comprehensive Zoning Ordinance that is the subject matter of Plaintiff's First Amendment challenge to the constitutionality of the Ordinance. Ordinance No. 11,0001 divided the City of Miami into 24 geographical areas and specified regulations applicable to property located within each area. The Ordinance precisely enumerated the specific public purposes and objectives the City intended and hoped to achieve through the enactment of Ordinance No. 11,000.2 A grace period of five years was provided to Plaintiff, and any other nonconforming billboard or commercial advertising permit holders, with existing structures already erected within which to remove such billboards.3

National alleges that the Zoning Ordinance changed the City's zoning classifications, and these reclassified zones had the effect of making "some or all of the offsite signs in the effected zones4 nonconforming with the Zoning Ordinance."5

With the five-year grace period protecting National's existing billboard structures, things remained relatively quiescent for the next ten years.

In April 2001, the City commenced to enforce the Zoning Ordinance by issuing notices to property owners on whose property National had erected billboard signs. The City notices advised the property owners that they were in violation of "`Article (11) Sections 1107.2.2(a) [sic] Failure to Completely Remove a Sign, Billboard, or a Commercial Advertisement from the Subject Property.'"6 The property owners were told to correct the violations by various deadlines established throughout the month of May 2001, and that failure to do so could result in $500 per day fines, arrest, and closing their businesses, by the City's Code Enforcement Board.

The Miami City Commission, on July 10, 2001, authorized the City Manager to notice a meeting for July 19, 2001, at which the City Commission could make a finding that companies engaged in outdoor advertising in the City of Miami are notorious outstanding lawbreakers in order to justify its decision to authorize the removal of the billboards without notice, to hold outdoor advertising companies "in contempt of the City Commission, ..."7

The City served over 100 property owners with summonses to appear before its Code Enforcement Board to respond to charges that the owners had failed to completely remove signs, billboards, or commercial advertisements from their property.

At the hearings8, ten of the properties upon which Plaintiff's billboards were located were found to be in violation of the Ordinance and the signs were ordered removed.9

Exercising the appellate rights provided by the Zoning Ordinance, all ten property owners appealed the decisions of the City's Hearing Officers to the County Court in and for Dade County and thereafter, to the Eleventh Judicial Circuit Court of Florida.10 That court, after the posting of an original appeal bond of $450,000 by Plaintiff granted a stay of the final orders requiring removal of the billboards until such time as the appeal in state court is decided by that court.

II. Procedural Posture
A. National I11

On July 11, 2001, in response to the City's enforcement proceedings against property owners with whom National had leases to erect and maintain billboards, National filed its three-count Complaint against the City in this Court12 alleging that the Zoning Ordinance (1) discriminated in violation of the First Amendment and Equal Protection Clause, (2) lacked procedural safeguards in violation of the First Amendment, and (3) the City's decision to begin immediate removal of the signs without further notice or proceedings violated Due Process and the First Amendment.13

Three weeks later, National moved for injunctive relief to prevent "the City of Miami (1) from removing any signs owned, leased, or operated by National Advertising ..., (2) from enforcing the City's sign regulations against any persons or business entities during the pendency of this litigation, and (3) from imposing any fines or filing any liens in conjunction with enforcement of the City's sign regulations against owners of any property owned by or leased to National Advertising, its parents, affiliates, or subsidiaries."14

On August 23rd, 24th and September 20th, the Court held evidentiary hearings on National's motion. Plaintiff's Motion for Preliminary Injunction was denied pending exhaustion of National's administrative and appellate remedies guaranteed Plaintiff in the Zoning Ordinance.15

National appealed and the Eleventh Circuit issued its Mandate on National's appeal on November 26, 2002, vacating and remanding this Court's Order Denying Motion for Preliminary Injunction and stating that "[b]ecause the City summoned the property owners who lease the property to National, rather than National itself, National had no administrative remedies to exhaust."16

National filed an Amended Complaint against the City and Miami Dade County ("the County") on January 30, 2003, alleging new claims in addition to the three originally set forth in the Complaint: (1) the City's refusal to stay the accrual of code enforcement fines discriminates against National on the basis of its exercise of its First and Fourteenth Amendment rights to pursue litigation against the City, (2) the City and the County's discriminatory acts violate the First Amendment and the Equal Protection Clause, and (3) the City and the County's lack of procedural safeguards violate the First Amendment. Plaintiff sought another injunction on March 3rd of this year.

B. National II

On February 21, 2002, National filed the case referred to as National II17 in response to the City's rejection of the seven permit applications for commercial speech advertising billboards National submitted in December, 2001 and January, 2002. One of the applications, subsequently resubmitted was granted by the City. On March 3, 2003, the parties filed Cross-Motions for Summary Judgment18 relating to the factual allegations underlying National II. In an attempt to avoid confusion, those Cross-Motions for Summary Judgment are addressed and ruled upon by separate order.

III. Overview of Arguments

In the Cross-Motions for Summary Judgment, both National and the City set forth various arguments as to why each is entitled to judgment as a matter of law. In its Motion, the City argues that this Court should enter summary judgment in its favor on the following grounds: (1) National's claims are not ripe because National has failed to show injury to its First Amendment rights or its advertisers' First Amendment rights; (2) National has no standing because National has no injury-in-fact, any injury National may have was not caused by the City, and National's claims are not redressable by this Court; and (3) National's claims are moot because the ordinance it is challenging has been amended and replaced in its entirety. In its Response, National argues that: (1) National's claims are ripe; (2) National has First Amendment injury; (3) this Court can redress National's claims; and (4) National's claims are not moot as a result of the City's amendment to the Ordinance.

On the other hand, in its Motion for Summary Judgment, National argues that it is entitled to summary judgment because: (1) the Ordinance abridges the First Amendment by a) discriminating on the basis of content against noncommercial speech, b) discriminating against different types of noncommercial speech, and c) favoring onsite commercial speech over off-site commercial speech; (2) the Ordinance lacks procedural safeguards required for a speech licensing scheme; and (3) the unconstitutional provisions cannot be severed. In its Response, the City argues that National's Motion should be denied because (1) there are material facts in dispute, (2) the Court lacks subject matter jurisdiction, and (3) the Ordinance does not violate the First Amendment.

IV. Legal Standard

Summary judgment is appropriate where "there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); See also Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (citations omitted). If the record as a whole could not lead a rational fact-finder to find for the non-moving party, there is no genuine issue for trial. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). On a motion for summary judgment, the court must view the evidence in the light most favorable to the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (citations omitted). There is no requirement that the trial court make any findings of fact. Id. at 251, 106 S.Ct. 2505.

The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact. Hairston v. Gainesville Sun Publ'g Co., 9 F.3d 913, 918 (11th Cir.1993). If the movant meets this burden, the burden then shifts to the nonmoving party to establish that a genuine...

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    ...standing to assert a facial overbreadth challenge regarding noncommercial speech, Defendant cites National Advertising Co. v. City of Miami, 287 F.Supp.2d 1349 (S.D.Fla.2003) ("City of Miami"), which held that an outdoor advertising company did not have standing pursuant to the overbreadth ......
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