The Advantage of Advert. v. City of Opelika
| Docket Number | 3:22-cv-612-RAH [WO] |
| Decision Date | 07 August 2023 |
| Parties | THE ADVANTAGE OF ADVERTISING, LLC, Plaintiff, v. CITY OF OPELIKA, ALABAMA, Defendant. |
| Court | U.S. District Court — Middle District of Alabama |
The Advantage of Advertising, LLC engages in the business of erecting public-facing signs for commercial and noncommercial purposes. In this dispute, Advantage applied for permission to erect six signs in Opelika, Alabama. The City of Opelika rejected all six sign applications. Advantage brings this suit challenging the application denials, claiming violations of its First Amendment free speech and Fourteenth Amendment equal protection rights, as well as violations of state free speech laws and Alabama Code § 11-52-77 (). The City has moved to dismiss asserting lack of standing and alternatively failure to state a claim. Upon consideration of the parties' arguments, the Court finds that the City's motion is due to be granted in part and denied in part.
The Court has original subject matter jurisdiction over Advantage's federal claims under 28 U.S.C. § 1331 and supplemental jurisdiction over its state law claims under 28 U.S.C. § 1367(a). Personal jurisdiction and venue are uncontested, and the Court concludes that venue properly lies in the Middle District of Alabama. See 28 U.S.C. § 1391.
Federal Rule of Civil Procedure Rule 12(b)(1) permits dismissal of an action for lack of subject-matter jurisdiction, in this case due to standing concerns. A defendant may use Rule 12(b)(1) to attack subject-matter jurisdiction in two ways: facially and factually. See Murphy v. Sec'y, U.S. Dep't of the Army, 769 Fed.Appx. 779, 781 (11th Cir. 2019) (per curiam) (citing Morrison v. Amway Corp., 323 F.3d 920, 924 n.5 (11th Cir. 2003)).[1] “Facial challenges to subject matter jurisdiction are based solely on the allegations in the complaint.” Carmichael v. Kellogg, Brown & Root Servs., Inc., 572 F.3d 1271, 1279 (11th Cir. 2009). “When considering such challenges, the court must, as with a Rule 12(b)(6) motion, take the complaint's allegations as true.” Id. When analyzing a factual attack, though, the court may consider “matters outside the pleadings, such as testimony and affidavits.” Murphy, 769 Fed.Appx. at 781 (citing Lawrence v. Dunbar, 919 F.2d 1525, 1529 (11th Cir. 1990)). In such instances, the court is “not constrained to view [the facts] in the light most favorable” to the plaintiff. Carmichael, 572 F.3d at 1279; see also Murphy, 769 Fed.Appx. at 781.
A Rule 12(b)(6) motion to dismiss tests the sufficiency of the complaint against the legal standard set forth in Rule 8, which requires “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2); see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 570). In ruling on a motion to dismiss for failure to state a claim upon which relief can be granted, the court must accept well-pled facts as true, but the court is not required to accept a plaintiff's legal conclusions. Id.
“Determining whether a complaint states a plausible claim for relief [is] . . . a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id. at 679 (citation omitted). The plausibility standard requires “more than a sheer possibility that a defendant has acted unlawfully.” Id. at 678. This pleading standard “does not require ‘detailed factual allegations,' but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Id. (quoting Twombly, 550 U.S. at 555). Factual allegations that fail to rise “above the speculative level” are insufficient to meet the plausibility standard. Twombly, 550 U.S. at 555. Indeed, “[a] pleading that offers ‘labels and conclusions' or ‘a formulaic recitation of the elements of a cause of action will not do.'” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555).
The City of Opelika has implemented an application and permitting process for the erection of most signs within the City. The sign code substantially governs billboards, off-site commercial signs, and on-site signs. Billboards-“[a]n advertising sign or other commercial sign which directs attention to a business, commodity, service, entertainment, or attraction sold, offered or existing elsewhere than upon the same lot where such sign is displayed”-are prohibited. (Doc. 1-1 at 6, 17.) Off-site commercial signs-“non-accessory billboard[s] or sign[s] which direct[] attention to a business, commodity, service, entertainment, or attraction that is sold, offered or existing elsewhere than upon the same lot where such sign is displayed”-are also prohibited.[2] (Id. at 8, 17.) Billboards and other off-site commercial signs erected prior to the date the sign code became effective were grandfathered in. (Id. at 54-55.) Generally, on-site signs are permitted but subject to size, luminosity and height requirements based on the zoning of the underlying property.
Exempt from all requirements are government and statutory signs. (Id. at 1617.) A government sign is defined as a sign “erected by or on the order of a public official or quasi-public entity . . . in the performance of any duty.” (Id. at 11-12.) A statutory sign, meanwhile, is defined as a “sign the city is required to erect by any statute of the State of Alabama or the United States for safety, directional, or traffic control purposes.” (Id. at 14.)
As a general matter, no sign may be erected in the City without a City-issued permit. On the permit (or sign) applications themselves, the applicant must provide, among other things, information on sign illumination, size, location, and other signs on the property. (Id. at 46-48.) Once a sign application has been filed, the City has thirty days to review the application, and if no decision is provided within that timeframe, the application is deemed denied. (Id. at 49.) After the thirty-day period has passed, if the applicant did not receive a written decision as to the denial of their application, the applicant has sixty days to request a written reason for why the sign was not approved, to which the City must respond within ten calendar days. (Id.) The applicant then has a fourteen-day window to ask for reconsideration. (Id. at 50.) Aggrieved parties may then seek judicial review. (Id. at 51.)
After reaching agreements with various landowners to erect signs on their properties, Advantage submitted six sign applications on March 15, 2021. (Doc. 1 at 9.) According to Advantage, each application was fully complete and included documentation showing landowner permission to build on the site, “the required site plan of the property showing the location” of each proposed sign, and “engineered drawings showing the manner of construction and design of the sign.”[3] (Id.)
City Sign Enforcement Officer Matt Mosley denied the applications via email and regular mail on April 14, 2021. (Id. at 10.) According to Mosley, Advantage's applications were denied because they all were incomplete and because, given the information that was provided, the proposed signs did not meet several code requirements. (See Docs. 1-8 through 1-13.) For instance, among other reasons, each application was denied because the proposed digital reader board exceeded 50 percent of the principal sign surface area, in violation of the code. (See, e.g., Doc. 1-8 at 5-6.) Some permit applications were also denied because their approval would have resulted in too many signs at the given location. (See, e.g., Doc. 1-13 at 6.) Mosley also indicated that, contrary to the assertion made in three of the applications, none of the signs could evade the sign code by carrying a message from the Alabama Department of Public Health or other state agencies, since nothing was submitted showing that an order by a government official directed the posting of these particular signs. (Doc. 1-10 at 4-5, 14; Doc. 1-11 at 4, 14; Doc. 1-13 at 4-5, 14.) The denial letters also contained the following statement: (See, e.g., Doc. 1-9 at 6.)
Advantage contends that the City's stated reasons for the application denials were pretextual because other sign applications have been approved that were incomplete or contained similar information. (Doc. 1 at 10-11.) Advantage also contends that the denials were also based on impermissible content-based reasons. (Id. at 8.)
Aside from challenging the City's application denials in the Circuit Court of Lee County, Advantage also initiated this action alleging violations of its First Amendment and Fourteenth Amendment rights based on (1) the prohibition on signs with off-site messages; (2) discretionary aspects of the sign code allowing the City to approve certain incomplete applications but denying others; (3) the lack of time limits and other safeguards which allowed City officials to wait thirty days to rule upon Advantage's applications without affording them the ability to supplement their applications; (4) the City's alleged refusal...
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