Roma Outdoor Creations v. City of Cumming, Ga.

• Decision Date: 14 May 2008
• Docket Number: Civil Action No. 2.07-CV-0133-WCO.
• Citation: 558 F.Supp.2d 1283
• Parties: ROMA OUTDOOR CREATIONS, INC., Plaintiff, v. CITY OF CUMMING, GEORGIA, and Scott Morgan, in his official capacity as Director of the City's Planning and Zoning Department, Defendants.
• Court: U.S. District Court — Northern District of Georgia

558 F.Supp.2d 1283

ROMA OUTDOOR CREATIONS, INC., Plaintiff, v. CITY OF CUMMING, GEORGIA, and Scott Morgan, in his official capacity as Director of the City's Planning and Zoning Department, Defendants.

Civil Action No. 2.07-CV-0133-WCO.

United States District Court, N.D. Georgia, Gainesville Division.

May 14, 2008.

Edward Adam Webb, G. Franklin Lemond, Jr., The Webb Law Group, LLC, Atlanta, GA, for Plaintiff.

Dana Kristin Maine, Erin Frances Highland, Freeman Mathis & Gary, Kevin James Tallant, Miles McGoff & Moore, LLC, Atlanta, GA, for Defendants.

ORDER

WILLIAM C. O'KELLEY, Senior District Judge.

This case is before the court for consideration of a motion for partial judgment on the pleadings [10-1] filed by defendants City of Cumming, Georgia, and Morgan.¹

I. Factual Background

On May 15, 2007, plaintiff submitted two sign permit application packages to the City (Compl. ¶ 11). Although the proposed sign locations complied with the requirements of the City's sign ordinance, the planning commission voted to recommend that the mayor and city council deny the applications (Compl. ¶¶ 13, 16). Two months later, the mayor and city council adopted the planning commission's recommendation and denied plaintiff's applications (Compl. ¶ 17).

This lawsuit grows out of those denials. According to plaintiff, the City's use of artificial, "previously non-existent criteria" to deny the permits violated the Constitution's guarantee of equal protection under the law. (See Compl. ¶¶ 21, 26, 29). Plaintiff also alleges in a successive series of counts that the City's ordinance violates the First Amendment. In Count Two, plaintiff alleges that the ordinance vests city officials with unbridled discretion (Compl. ¶¶ 33-34); in Count Three, he contends that the ordinance, which does not provide a time limit by which city officials must render a decision on a party's permit application, lacks procedural safeguards (Compl. ¶¶ 38-40); and in Count Four, plaintiff alleges that the ordinance violates the First Amendment by, among other things,² favoring commercial speech over noncommercial speech (Compl. ¶¶ 44-47). Plaintiff's final claim charges that the ordinance violates the Georgia Constitution (Compl. ¶¶ 51-55).³

On March 18, 2008, the City filed the motion currently before the court, seeking judgment in its favor on Counts Two, Three, Four, and Five of the complaint.

II. Legal Standard

"A motion for judgment on the pleadings is subject to the same standard as is a Rule 12(b)(6) motion to dismiss." Provident Mut. Life Ins. Co. of Philadelphia v. City of Atlanta, 864 F.Supp. 1274, 1278 (N.D.Ga.1994). The law governing motions to dismiss is well-settled. A complaint should be dismissed only "when, on the basis of a dispositive issue of law, no construction of the factual allegations will support the cause of action." Marshall County Bd. of Educ. v. Marshall County Gas Dist., 992 F.2d 1171, 1174 (11th Cir. 1993). In considering a motion to dismiss, the court must accept the plaintiff's allegations as true and construe all the allegations in the complaint in a light most favorable to plaintiff. Watts v. Fla. Int'l Univ., 495 F.3d 1289, 1295 (11th Cir.2007). Ultimately, the complaint is required to contain "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, ___ U.S. ___, 127 S.Ct. 1955, 1974, 167 L.Ed.2d 929 (2007). If the complaint adequately states a claim, it may not be dismissed simply because the defendant (or the court) believes that the plaintiff will fail to find evidentiary support for his allegations. Id. at 1969 (noting that a district court weighing a motion to dismiss asks "not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims").

III. Discussion

Of plaintiff's five claims, the City contends that only Count One actually states a claim for which relief can be granted. The remaining counts supposedly fail because plaintiff lacks standing to assert them or because plaintiff failed to identify the specific provisions of the ordinance he is challenging. Neither argument is persuasive.

The City argues that plaintiff lacks standing to pursue Counts Two, Three, Four, and Five because it has not suffered an injury under the provisions of the ordinance that those counts target. "[W]hen lack of standing is raised in a motion to dismiss, the issue is properly resolved by reference to the allegations of the complaint." Church v. City of Huntsville, 30 F.3d 1332, 1336 (11th Cir.1994). The City's effort to dismiss Counts Two, Three, Four, and Five for lack of standing argument fails because it is largely made without regard to the complaint. When the complaint's allegations are considered, plaintiff's standing is apparent.

Various paragraphs of the complaint allege that the City's sign ordinance vests city officials with unbridled discretion, lacks procedural safeguards, and otherwise violates the First Amendment and the Georgia Constitution. As in The Lamar Company, LLC v. City of Marietta, 538 F.Supp.2d 1366 (N.D.Ga.2008), plaintiff "as a permit applicant is subject to" those allegedly unconstitutional provisions and, as such, has suffered the requisite injury. 538 F.Supp.2d at 1372; see also Lamar Adver. Co. v. City of Douglasville, 254 F.Supp.2d 1321, 1326-27 (N.D.Ga.2003) ("Because ... [the plaintiff] asserts that [the defendant's] licensing statute vests unbridled discretion in city officials to permit or deny expressive activity, [the plaintiff] has standing to challenge [the defendant's sign] ordinance on its face.").

Nonetheless, the City suggests that "[p]laintiff does not have standing to challenge any parts of the ordinance it may assert constitute the challenged conduct because plaintiff's signs were denied based on their proximity to other signs." Defs. Br. Mot. Jdgmt. 5 (emphasis added). The implication, of`course, is that plaintiff was not "subject to" the provisions of the ordinance he complains about because his applications were denied pursuant to another provision of the City's ordinance. (See, e.g., Defs. Br. Mot. Jdgmt. 5). But for the allegations of the complaint, this argument would be persuasive.

In the paragraphs that the City overlooks, plaintiff specifically alleges that the City's ordinance confers unbridled discretion upon City officials and that City officials used that discretion to "create" new criteria upon which to base the denial of plaintiff's applications. In other words, plaintiff alleges that something other than the locations of its proposed signs caused the City to deny them. In that sense, this case is quite unlike those cited in the City's brief, all of which held that plaintiffs who applied for signs flatly prohibited by an ordinance were not subject to permitting procedures that may or may not have violated the First Amendment. See Advantage Advertising, LLC v. City of Hoover, 200 Fed.Appx. 831, 835-36 (11th Cir. 2006); Granite State Outdoor Advertising, Inc. v. Cobb County, 193 Fed.Appx. 900, 905 (11th Cir.2006); Maverick v. Hillsborough County, 508 F.Supp.2d 1126, 1144 (M.D.Fla.2007). Here, the complaint alleges that plaintiff intended to erect signs that were permitted under the ordinance but that officials, who took one hundred fifty (150) days to act on the applications, exploited the discretion afforded them to arbitrarily deny the applications. Because of that, the court cannot say, as was said in Hoover, that plaintiff

was not subject to those provisions [that allegedly granted unbridled discretion to city officials] because off-premise signs are never permitted under the ordinance .... [Plaintiff] did not allege in its complaint or present evidence that it intended to construct signs that might be permitted under the statute, which would subject [it] to the lack of procedural safeguards.

(Defs. Br. Mot. Jdgmt. 6 (quoting Hoover, 200 Fed.Appx. at 835)). Plaintiff was and is subject to the provisions of the ordinance that it is challenging in this lawsuit. The City's arguments to the contrary come at the expense of the complaint and, therefore, are unpersuasive.

The City also contends that it is entitled to a partial judgment because, for many of its claims, plaintiff failed to cite the relevant, offensive ordinance provision. See, e.g., Defs....