Rtm Media, L.L.C. v. City of Houston
| Citation | 578 F.Supp.2d 875 |
| Decision Date | 29 September 2008 |
| Docket Number | Civil Case No. 4:07-cv-2944. |
| Parties | RTM MEDIA, L.L.C., Plaintiff, v. The CITY OF HOUSTON, Defendant. |
| Court | U.S. District Court — Southern District of Texas |
Robert Cudlipp Williams, Buck Keenan Gage Little & Lindley, L.L.P., Houston, TX, for Plaintiff.
James R. Moriarty, Patrick Kevin Leyendecker, Moriarty Leyendecker PC, Houston, TX, Craig Smyser, Smyser Kaplan & Veselka, Garland Doty Murphy, IV, Smyser Kaplan & Veselka LLP, for Defendant.
Presently before the Court are Defendant The City of Houston's Motion for Summary Judgment (Doc. 69) and Plaintiff RTM Media, L.L.C.'s Motion for Summary Judgment (Doc. 89). Having considered these documents, the responses and replies thereto, and the relevant legal authority, the Court hereby ORDERS that Defendant's motion (Doc. 69) is GRANTED and Plaintiff's motion (Doc. 89) is DENIED.
Plaintiff RTM Media, L.L.C. ("RTM") initially filed suit against The City of Houston (the "City") on September 12, 2007 (Doc. 1). On September 14, 2007, RTM filed its First Amended Complaint and Motion for Temporary Restraining Order and Preliminary Injunction alleging that: (1) the Sign Code unconstitutionally distinguishes between signs displaying commercial speech and signs displaying noncommercial speech; (2) criminalizing an activity permitted by the state violates due process; and (3) the Sign Code cannot legally or constitutionally be applied to persons who merely advertise on a billboard (Doc. 3). After holding a hearing, the Court issued an order granting RTM's motion for a preliminary injunction (Doc. 12). Subsequently, the Court held a second hearing and issued an Order Clarifying Preliminary Injunction Entered September 26, 2007, wherein it ordered as follows:
[B]ecause there is a substantial likelihood that its content-based distinction between commercial and noncommercial speech violates the Free Speech Clause of the First Amendment, pending a trial on the merits, the City of Houston shall be enjoined (1) from enforcing its Sign Code, codified at Chapter 46 of the City of Houston Building Code, as to existing billboards in the [extraterritorial] jurisdiction of the City of Houston, against RTM Media, L.L.C., its advertisers, vendors, owners, lessors and/or lessees, and (2) from fining or threatening to fine advertisers placing advertisements on billboards owned by RTM Media, L.L.C.
(Doc. 36). Both Plaintiff and Defendant have filed motions for summary judgment. Before addressing the arguments presented in each of their briefs, as well as those in their responses and replies thereto, the Court provides the following factual background.
The City adopted the Sign Code in 1980 "to regulate signs and billboards and the permitting thereof" based on its findings that "the unregulated construction of signs, billboards, and other outdoor advertising structures can present" both "structural hazards which threaten the health and safety of the citizens of the City" and "impediments and dangers to traffic along City thoroughfares and easements." (Doc. 69 Ex. 1 at 000610). Additionally, the City found that "the continued construction of off-premise signs leads to the diminution of property values for adjacent properties and thereby adversely impacts on the taxable value of such affected properties," as well as an "increased risk of distraction and danger to citizens driving and walking on streets and thoroughfares due to Houston's present high volume of traffic on streets and thoroughfares." (Id. at 000611). Several provisions of the Sign Code are relevant to the Court's determination in the instant case.
The City's Sign Code defines "sign" as follows:
[A]ny outdoor display, design, pictorial or other representation that shall be so constructed, placed, attached, painted, erected, fastened or manufactured in any manner whatsoever so that the same shall be used for advertising. The term "sign" shall include the sign structure. Every sign shall be classified and conform to the requirements of each of such classifications set forth in this chapter.
(Doc. 69 Ex. 2 at 001035) (emphasis added). Specifically, an "off-premise sign" is defined as follows:
[A]ny sign that advertises a business, person, activity, goods, products or services not usually located on the premises where the sign is installed and maintained, or that directs persons to any location not on the premises.
(Id. at 001038). In a section entitled "Abatement of Off-Premise Signs," the Sign Code states, in pertinent part:
(b) Declared Nonconformity. All off-premise signs within the sign code application area are hereby declared to be nonconforming and unauthorized. The subject signs shall be removed following amortization as provided in Article 1, Section 6(k) of Chapter 221, Acts of the 69th Legislature, Regular Session, 1985.
(c) Exclusion. The provisions of this section shall not be construed to require the removal of a structure that is used exclusively and at all times (except when there is no copy at all on the structure) for messages that do not constitute advertising, including, but not limited to, political messages, religious or church related messages, public service, governmental and ideological messages and other copy of a nature that is not commercial advertising because such a structure is not a "sign" (either on-premise or off-premise) as that term is defined, for purposes of this chapter and is not subject to regulation under this chapter. A structure that is subject to regulation under this chapter may contain non-commercial messages in lieu of or in addition to any other messages, but the structure shall not be exempt from regulation as a sign under this chapter unless used exclusively and at all times as provided above for non-commercial messages.
(Id. at 001106) (emphasis added). Additionally, the Sign Code prohibits new off-premise signs as follows:
From and after the effective date, no new construction permits shall be issued for off-premise signs within the sign code application area. This prohibition shall apply to all classifications of signs, types of signs, and special function signs, and all other signs used as off-premise signs, including portable signs, with the exception that off-premise signs that advertise the sale or rental of real property or direct persons to the location of real property for sale or rental, which signs shall be limited to 40 square feet in area, shall continue to be permitted for a single three-year term.
(Id. at 001086). The distinctions between commercial and non-commercial speech made in these provisions form the basis of Plaintiff's First Amendment and equal protection arguments in the instant case.
The City has presented evidence on the effects the Sign Code has had on reducing the total number of billboards. Susan Luycx ("Luycx") has been employed with the City since 1996 and was appointed to serve as the City's Sign Administrator in December 2005. (Luycx Decl., Doc. 69 Ex. 5 at 1). As the City's Sign Administrator, Luycx is responsible for enforcing the Sign Code. (Id.). Additionally, she is the custodian of records for the Sign Administration Department of the City's Code Enforcement Division. (Id.). Attached to her declaration are two exhibits, A and B.1
Exhibit A is a copy of a spreadsheet reflecting the inventory of off-premise signs existing in the City and its extra-territorial jurisdiction ("ETJ") as of September 13, 1996, as well as certain signs that had been removed prior to that date and since the Sign Code's enactment in 1980. (Id.) This spreadsheet shows that the number of off-premise signs in the City limits as of 1980, the year the Sign Code was enacted, and in the City's ETJ as of 1986, the year the City expanded the Sign Code's application area to cover the ETJ, was at least 8,119 off-premise sign faces and 5,058 off-premise sign structures. (Id.). As of September 1996, however, at least 2,124 sign faces and 1,358 sign structures had been removed. (Id.). Exhibit B is a spreadsheet reflecting the inventory of off-premise signs existing in the City and its ETJ as of January 14, 2008. (Id. at 2). This spreadsheet states that the total number of off-premise signs in the City and its ETJ as of January 14, 2008, was 4,112 sign faces and 2,474 sign structures. (Id.). Therefore, based on these numbers, the total amount of off-premise sign faces and sign structures in the City and its ETJ has decreased by 50.64% and 48.91%, respectively.
Furthermore, Luycx states that, as of January 17, 2008, approximately 300 of the off-premise signs in the City and its ETJ possessed non-commercial messages. (Id.).2
Additionally, Plaintiff contends the City has violated its due process rights by acting without any legal basis in depriving Plaintiff of its property and destroying its business. Plaintiff's billboards at issue in this case are those on interstate and primary state highway systems beyond the City's limits but within its ETJ. "The [ETJ] of a municipality with 100,000 or more inhabitants, such as Houston, is `the unincorporated area that is contiguous to the corporate boundaries of the municipality and that is located within five miles of those boundaries.'" Brooks v. State, 226 S.W.3d 607, 608 (Tex.App.-Houston [1st Dist.] 2007) (citing Tex. Loc. Gov't Code Ann. § 42.021(5)). The City argues it can prohibit placement of billboards in the ETJ. RTM argues that it need not obtain permits from the City because it has obtained permits from the State for erecting and maintaining billboards in the City's ETJ.
Plaintiff further asserts that the Sign Code cannot legally or constitutionally be applied to persons who merely advertise on billboards, and, thus, the City cannot properly fine or threaten to fine Plaintiff's advertisers. The Sign Code includes a provision regarding permits, § 4605(a), which is...
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