Tanner Advertising Group v. Fayette County, No. 04-13210.

• Decision Date: 09 June 2006
• Docket Number: No. 04-13210.
• Citation: 451 F.3d 777
• Parties: TANNER ADVERTISING GROUP, L.L.C., Plaintiff-Appellant, v. FAYETTE COUNTY, GEORGIA, Defendant-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

451 F.3d 777

TANNER ADVERTISING GROUP, L.L.C., Plaintiff-Appellant, v. FAYETTE COUNTY, GEORGIA, Defendant-Appellee.

No. 04-13210.

United States Court of Appeals, Eleventh Circuit.

June 9, 2006.

COPYRIGHT MATERIAL OMITTED

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

Laurel E. Henderson, Decatur, GA, Dennis A. Davenport, McNally, Fox & Grant, Fayetteville, GA, for Defendant-Appellee.

Drew David Dropkin, Elizabeth Vranicar Tanis, Sutherland, Asbill & Brennan, LLP, David H. Flint, Mark W. Forsling, Schreeder, Wheeler & Flint, William H. Buechner, Jr., Paul B. Frickey, Dana K. Maine, Freeman, Mathis & Gary, LLP, Atlanta, GA, Cristine M. Russell, William David Brinton, Rogers Towers, Jacksonville, FL, Shauna F. Morris, Frazer, Hubbard, Brandt, Trask & Yacavone, LLP, Dunedin, FL, Robin M. Wolpert, John M. Baker, Greene Espel, P.L.L.P., Minneapolis, MN, J. Bentley Owens, III, Starnes & Atchison, Birmingham, AL, for Amici Curiae.

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

Before EDMONDSON, Chief Judge, and TJOFLAT, ANDERSON, BIRCH, DUBINA, BLACK, CARNES, BARKETT, HULL, MARCUS, WILSON, PRYOR and KRAVITCH^*, Circuit Judges.

PRYOR, Circuit Judge:

This appeal by Tanner Advertising Group, LLC, of an order that dismissed its challenge of the Fayette County Sign Ordinance of 1998 presents issues of mootness and standing. In 2003, Tanner applied for and was denied a sign permit because Tanner sought to construct signs that did not comply with section 1-43 of the Sign Ordinance. Fayette County, Ga., Sign Ordinance §§ 1-1-1-82 (1998) [hereinafter "1998 Sign Ordinance"]. Tanner moved permanently to enjoin the enforcement of section 1-43 and several other provisions of the 1998 Sign Ordinance as a violation of the freedom of speech protected by the First Amendment, as incorporated by the Fourteenth Amendment. The district court denied injunctive relief on the ground that section 1-43 was constitutional and Tanner lacked standing to challenge the other provisions of the 1998 Sign Ordinance. A panel of this court reversed and concluded that, notwithstanding the constitutionality of section 1-43, Tanner had standing, under the overbreadth doctrine, to challenge the other provisions of the 1998 Sign Ordinance. Tanner Adver. Group LLC v. Fayette County, 411 F.3d 1272 (11th Cir.), vacated, 429 F.3d 1012 (11th Cir.2005). We vacated that decision and granted rehearing en banc to decide whether an injury under one provision of the 1998 Sign Ordinance confers standing to challenge other provisions. After we granted the petition, Fayette County repealed the 1998 Sign Ordinance and enacted a comprehensive new Sign Ordinance. See Fayette County, Ga., Sign Ordinance §§ 1-1-6-1 (2005) [hereinafter "2005 Sign Ordinance"]. Because all but one of the challenges by Tanner were rendered moot by the 2005 Sign Ordinance and Tanner lacks standing to challenge the remaining provision, we now dismiss this appeal.

I. BACKGROUND

To explain the context of this appeal, we address three matters. We first review the operation of relevant provisions of the 1998 Sign Ordinance. We then review the litigation that led to this appeal. We then discuss the repeal of the 1998 Sign Ordinance and the enactment of the 2005 Sign Ordinance.

A. The 1998 Sign Ordinance

The 1998 Sign Ordinance governed the permitting, location, size, and maintenance of all signs in Fayette County. The 1998 Sign Ordinance classified signs as either "on-premise signs" or "off-premise signs." See 1998 Sign Ordinance §§ 1-1, 1-6, 1-43. Tanner planned to construct only off-premise signs.

The 1998 Sign Ordinance defined an "off-premise sign" as "[a] sign that advertises a product, service, place, activity, person, institution, business or solicitation which is not carried out on the premises upon which the sign is located." Id. § 1-1. Permanent off-premise signs had to be "no more than three [] feet above ground level" and "no less than and no greater than two [] horizontal feet by two [] vertical feet in width." Id. § 1-43(B). The 1998 Sign Ordinance also required that a permanent off-premise sign "be brown with white lettering" and contain "information permanently legible and affixed" to the back of the sign. Id. § 1-43(C). A permanent off-premise sign could "communicate either a commercial or noncommercial message." Id. § 1-43(A). "A permit [was] required" for every off-premise sign. Id.

To obtain a permit for a permanent off-premise sign, a person was required to submit to the Zoning Administrator an application with proposed plans for the structure and location of the sign. Id. § 1-12. The Zoning Administrator reviewed the application to determine whether the sign complied with the 1998 Sign Ordinance, id. § 1-11(B)(1), and issued a permit "if the proposed structure [was] in compliance with the requirements of" the 1998 Sign Ordinance. The 1998 Sign Ordinance did not provide a time limit within which the Zoning Administrator had to grant or deny a permit. See id. §§ 1-11, 1-12.

The 1998 Sign Ordinance also prohibited the use of "Attention-getting devices." Id. § 1-5(A)(10). The 1998 Sign Ordinance stated, "No balloons . . ., streamers, lights, pennants, etc. shall be used to attract attention to any sign or business. This includes neon tubing or bare bulb lights encircling a window or outlining the structure." Id. A sign could be illuminated internally or externally. Id. § 1-3. A sign was illuminated externally when it was "illuminated by an external light source directed primarily toward such sign. Such source cannot be a device that changes color, flashes, or alternates." Id.

Failure to comply with the 1998 Sign Ordinance was "a misdemeanor and the violator [would] be subject to a fine of up to $1,000.00 or imprisonment for up to twelve (12) months." Id. § 1-4(E). Each sign that violated the 1998 Sign Ordinance was "considered a separate violation when applying the penalt[ies]." Id. § 1-4(C). The 1998 Sign Ordinance also provided that "[s]hould any article, clause or provision of this ordinance be declared by a court of competent jurisdiction to be invalid such action shall not affect the validity of the ordinance as a whole." Id. § 1-82.

B. The History of This Litigation

Tanner is a Georgia limited liability company that buys and leases land to construct commercial and noncommercial signs. Tanner entered eight lease agreements with owners of real property to construct signs in commercial and industrial zones in Fayette County. On February 3, 2003, Tanner submitted eight applications for permits to construct signs that were 50 feet in height and 672 square feet in size. Tanner proposed to construct "Free-Standing," "Permanent Off-Premise" signs with "two 14' × 48' faces . . . mounted in a V-Type configuration" that displayed "various noncommercial and commercial messages." Tanner marked the space on the applications for "External Illumination," but did not mark the space for "Internal Illumination." The eight applications were denied the same day that they were submitted on the ground that they failed to comply with section 1-43 of the 1998 Sign Ordinance.

On February 19, 2003, Tanner filed a complaint to enjoin the enforcement of the 1998 Sign Ordinance and recover damages. Tanner alleged that the 1998 Sign Ordinance violated the First Amendment of the United States Constitution as incorporated to the States through the Fourteenth Amendment because it "fails . . . to circumscribe the time in which government officials must grant or deny a permit," grants county officials "virtually limitless discretion in deciding whether a sign permit will be granted or denied," and is a content-based prior restraint of speech that is not narrowly tailored to serve a compelling governmental objective. Tanner attached a certified copy of the 1998 Sign Ordinance to the complaint.

On May 9, Tanner moved for a permanent injunction and argued that it would suffer irreparable harm from the 1998 Sign Ordinance because "[t]he County's enforcement of . . . its unconstitutional regulations has not only postponed, but has effectively foreclosed Tanner's ability to speak" in five ways. First, Tanner argued that the 1998 Sign Ordinance "prevent[ed] the posting of most signs without prior approval of County officials," but "grant[ed] County officials unlimited time in which to approve or deny a permit." See id. §§ 1-11, 1-12. Second, Tanner contended that several provisions of the 1998 Sign Ordinance granted unbridled discretion to county officials "to either allow or prohibit signs based upon how the officials choose to define the sign." See id. §§ 1-3, 1-5(10), 1-5(11)(a)(2). Third, Tanner argued that the 1998 Sign Ordinance unconstitutionally restricted commercial speech because "[s]ection 1-44 of the regulations allows the County to be blanketed with a multitude of barely readable off-premise temporary signs that are exempt from permit requirements," but the city "provide[d] no findings or evidence whatsoever" that the provision furthers traffic safety and aesthetics. See id. §§ 1-43, 1-44. Fourth, Tanner argued that the 1998 Sign Ordinance completely banned "window signs, banners and flags . . . in residential districts." See id. §§ 1-51-1-55. Fifth, Tanner complained that the 1998 Sign Ordinance distinguished between commercial and noncommercial speech, but was not narrowly tailored to serve a compelling government interest. See id. §§ 1-70.

In support of its motion, Tanner filed a declaration from its member and representative, Michael Chordegian. Chordegian stated that "Tanner intends to utilize its proposed signs in Fayette County, Georgia[,] to communicate commercial as well as political, ideological, religious and other noncommercial messages." Chordegian also stated that "[d]ue to the County's enforcement of the 1998 Sign Ordinance, Tanner has been deprived of its ability to post...