Café Erotica of Florida, Inc. v. St. Johns County

WILSON, Circuit Judge:

I. BACKGROUND This appeal two in- cases consolidates volving facial and as-applied challenges to Florida, the St. County, Johns sign ordi- (“Ordinance” nance 99-51”), or “Ordinance codified as Article VII of the St. Johns (“LDC”). Land Development Code Each presents case legal identical issues. We review the grant summary judg- ment in favor of appellees, Café Erotica of (“Café” Florida, Inc. Erotica”), or “Café and Café Erotica We Dare Bare / / Adult Toys Great Food Exit Inc. / / (“We Bare”). Dare to Erotica, The first case involves Café an adult entertainment establishment in St. County (“County”), Johns Florida. Café has its advertised on business billboards along located Interstate 95. offi- cials issued several citations to Café for constructing signs on premis- its business es, advertising truck, on the side of a and erecting “political message” banners1 following County’s without required Susan Smith Erdelyi, Sonya Harrell permitting procedures. 19, 1998, June On Hoener, Marks, Gray, Gibbs, Conroy & challenged Café the then-current St. Johns P.A., Jacksonville, FL, for St. Coun- Johns ordinance, sign 90-9. Ordinance ty. The district court issued a preliminary in- Gary Gainesville, Edinger, FL, S. junction for against its enforcement. The Florida, Café Erotica of Inc. County subsequently passed four new ver- read, 1. One banner “Karen $ Bruner An In- using is sands in lost lawsuits for selective competent County Official.” Karen is Bruner Supervi- [enforcements.” Mr. is the Acosta public official who issued citations to sor of Code Enforcement St. Johns Coun- read, Café. Another "James Acosta is a fat ty- Barney ass Fife. county He has cost the thou- 01-34, it is substantive arguing that ordinance, enacting nance finally of its sions law predecessor as the ly the same 99-51. Ordinance flaws. the same constitutional contains case, to Bare Dare We other In the amend parties having Rather than Ordi- challenge against a facial brought ruled court the district pleadings, their alleged 99-51, also nance constitutionality of Ordinance only on the it against 99-51 County applied Ordinance of Or provisions challenged as the respect manner with in an unconstitutional substantially the same were dinance Interstate along it erected to a billboard See Coalition the new ordinance. under argued to Bare Dare 95. We Prohibi Marijuana Abolition long time impermissibly an County took 1301, 1310 Atlanta, F.3d tion v. imposed decision licensing its render Cir.2000) (“[W]hen ordinance (11th an im- it not upon requirements additional supersed of a enactment by the repealed businesses.2 similarly situated posed statute statute, ‘superseding then ing en- permanently courts Both district only to a case moots regulation enforcing Ordi- from County joined the challenged features it removes extent that summary judg- granted and nance 99-51 those that To the extent prior law. court Each district plaintiffs. the ment to in changes and in place, remain features 7.00.08,4 7.00.01,3 and Sections declared altered fundamentally law not so the have unconstitu- 99-51 Ordinance 7.03.015 the to render as statutory framework the sections tional, that these determined and abstraction, controversy mere a original rest of from the could not be severed ”) (quoting Naturist moot.’ case the of the LDC.6 Article VII 1515, 1520 Fillyaw, 958 F.2d Soc’y, Inc. Cir.1992)). (11th Thus, we consider their confined courts The district 99-51 constitutionality Ordinance the However, 99-51. analyses to Ordinance ap- we consider Specifically, appeal. 99-51, the Coun enacting Ordinance after challenges to sections facial pellees’ enacting regulation, sign its ty amended 7.00.08, of Ordinance 7.00.01, and 7.03.01 We May 2001. on 01-34 Ordinance provisions other taking into account challenge Ordi- to attempted Dare Bare limits in the time 7.00.01 sets by Jerry 3. Section forth was erected 2.The billboard issue deny approve or County must Johns ap- which St. Sullivan, president of incorporator and sign permit. a corporations, thirty-five Florida proximately Erotica. and including We Dare to Bare Café pro- appeals describes the 7.00.08 Eroti- Section words "Café contains the The billboard challenging a Food,” for Bare,” time cess and sets limits ca,” "Great "We Dare to permit denial. paint Inc.” The Toys,” "Exit "Adult and phras- attention to call the viewer's colors requirements A 7.03.01 sets forth to Bare.” 5. Section "We Dare Erotica” and es "Café signs,” specifically limits "special and use fac- sign below billboard is affixed small square signs” thirty-two message "political reads, Camp,” includes ing "Fish feet, residen- located in a square feet if or six did not ob- telephone Mr. Sullivan number. Further, tial district. permit structure. for the tain a property owned was erected structure Erotica, grant- Dare to in We Bare court Bare nor Café 6. The district We Dare neither Summary Judgment corpora- to Bare's ed We Dare of either business activities with no set and to extent the reasons issued Motion "for títere. tion conducted 4, 2002 December [Café] Court's January 2001. The forth of violation on notice Order.” since been removed. has may constitutionality affect the differently, the content of a sign must be provisions. those “considered for determining the location sign.” duration of a two Appellees challenges. assert facial First, they argue that Ordinance 99-51 is a II. APPLICABLE ORDINANCE PRO- speech

content-based restriction on be- VISIONS provisions cause certain favor commercial political speech. over Specifically, Ordinance requires anyone wish- appellees argue that because the Ordi- ing to erect a sign larger than fifteen “political nance limits message signs” to square feet in area to a sign permit. obtain thirty-two square while allowing feet com- See LDC 7.00.01 Further, & 3.09.08. mercial large billboards to be as as 560 requires permit LDC for all outdoor feet, impermissibly dis- advertising displays.7 Café’s banner is a against political speech. criminates Sec- “sign” within definition, as above are ond, appellees argue permitting the billboards that Café wishes to con- requirements of Ordinance 99-51 act as an struct. Café would have to obtain a prior unconstitutional restraint because permit before erecting these structures. the Ordinance does not contain the re- The County Administrator of St. Johns quired procedural protections licensing Administrator”) (“County makes FW/PBS, pursuant schemes Inc. v. all permitting decisions accordance with Dallas, the Standard Building Code.8 See LDC (1990). L.Ed.2d 603 § 7.00.01. County responds The that Ordinance Appellees challenge various of sections 99-51 is a constitutional content-neutral the Ordinance forth the in setting time County’s ordinance. Under reading the of County which the perform must its obli- Ordinance, the on-premise both and off- gations. Ordinance 99-51 states: premise signs can contain commercial and Applications for Sign Permits shall be noncommercial content. according denied, approved or the County Ad- County, political to the messages can be ministrator, (14) within fourteen placed days of billboards. The admits fully submittal of a regulates completed applica- that it types various signs of tion. If more differently, required information is any but contends differ- (14) ..., applicant in from the solely ences treatment the are due to con- fourteen day period run receipt tent-neutral factors shall from of that safety related to and aesthetics. The additional If applicant believes that noth- information. the ing the Ordinance deny writing “allows” it to certifies that the application is permit on a sign’s complete, based content. day The period fourteen however, County, admits that run because the shall from the County’s date of the Ordinance types signs treats different receipt writing. of that advertising display” "Outdoor displayed any is defined in is out- manner whatsoever letter, "any figure, § the LDC as ... doors.” LDC character 12.01.00. marquee sign, design, poster which [etc.] constructed, placed, shall be so attached ... Building 8. The "Standard Code” is "latest so that the same be used shall the attrac- regulations for edition of the technical for Struc- public any place, subject, per- tion of the to promulgated by tures as the Southern Build- son, firm, whatsoever, [International], corporation ing Congress ... which Code Inc. and advertising outdoor off-premise used 7.00.01(C).9 § LDC on- also include they and display,” and appeal- may be decision Any permitting feet. exceed 300 signs that premise County Commissioners Board of to the ed added). The (emphasis § 12.01.00 LDC the decision. days of thirty within message” “advertising defines Ordinance fif- has Board of Commissioners mes- only commercial including not as decision. a written to render days teen to copy intended “political but also sages, may be This decision § 7.00.08. LDC a candidate indirectly directly promote or thirty within Court the Circuit to appealed § 12.01.00. LDC or issue.” states, any “[i]n days. The Ordinance or message content case where restric- subject greater are Billboards the denial Sign proposed affected regard with signs on-premise tions than the cost of bear County shall permit, loca- and their of billboards number the Circuit Court with initiating the ease (re- 7.01.01(A) Compare tion. LDC justifying the burden of bear also shall loca- designated billboards stricting new added). (emphasis Id. the denial.” in the increase tions, stating no sev- general contains 99-51 Ordinance permit- shall be of billboards total number section, any stating, “[i]f provision erance this fully compliant ted “unless sentence, this Ordi- portion of or phrase, 7.02.01(A) (limiting Code”) with LDC held any reason nance the Code loca- per to four signs on-premise ground portion ... such or unconstitutional invalid the number tion, limits on no placing but distinct, and separate, deemed shall be marquee as building signs such holding and such provision, independent signs). canopy validity of remain- affect shall not 7.01.01(C) severability concerns Section 99-51 Ordinance thereof.” ing portions states, “[i]f It provisions. billboard ¶ Recitals, 7. Code, includ- provisions regulates different Ordinance permitting pertaining ing [provisions] differently, including the types of unconstitutional Billboards is found new (1) billboards; categories: following sign allowing to pertaining provisions ... all (3) (2) use “special and signs; on-premise shall be Billboards new permitting and message “political which include signs,” Bill- no totality in and new deemed voided signs.” be allowed.” boards shall 1. BILLBOARDS SIGNS 2. ON-PREMISE Bill- regulates billboards. Part 7.01 signs. on-premise regulates Part 7.02 feet in thirty-five to boards are limited to limited signs generally are On-premise square 378 large as as and can be height, 7.02.01(B). § LDC feet. square See along feet if square located feet—or 560 are of the interstate 7.01.03(A)-(B). 500 feet Those within § LDC See interstate. feet advertis- square to 300 up allowed “over thir- signs as are defined Billboards 7.02.02(B). § On- See (32) ing space. LDC that [are] feet size ty-two square any deficien- notify applicant days County.” LDC adopted by St. Johns approved or application is not cies. If 12.00.01. § thirty-day period, the new denied within this sec- Notably, 01-34 amends Ordinance sign permit be de- deems the Ordinance LDC, County Ad- allows the tion of nied. deny approve a thirty days to or ministrator twenty sign application and fully completed premise signs Ordinance, include advertisements for a John’s County’s sign both Café business, person, or service located on the Erotica and We Dare to Bare have been sign’s premises. Off-premise signs, by ordered to remove certain signs, some of contrast, contain similar advertisements display political which messages. In addi- product for a or business that is not locat- tion, both parties retain substantial inter- property ed furnished on the where the ests litigation, outcome as § sign is erected. See LDC 12.01.00. parties both gain by stand to a favorable such,

ruling. parties As both may chal- lenge Ordinance 99-51 applied. as 3. POLITICAL MESSAGE SIGNS message signs” “Political are regulated jurisdiction We also have to con category signs under a third “spe- called sider whether facially Ordinance 99-51 is signs.” cial use A politi- LDC 7.03.00. invalid. When a statute challenged as message cal “[ajny Sign is defined as invalid, facially may a court entertain such containing a non-commercial opinion or challenge every where application of the message endorsement and not containing a challenged provision may imper create an commercial message.” LDC 12.01.00 suppression missible risk of of ideas. See added). (emphasis definition, Under this Maryland, Freedman v. separate requirements “political (1965). 85 S.Ct. 13 L.Ed.2d 649 As message signs” appear govern all non- below, determined respect to the deci commercial signs. message signs Political sion of whether to deny issue or a sign 7.03.01(L) by § are limited to between six permit, Ordinance 99-51 places “unbridled thirty-two square feet. Commercial discretion” the hands of billboards, hand, on the other Administrator. Ordinance 99-51 large can be as as 560 feet. See creates “a danger realistic that the statute 7.05.01(A). 7.01.03(A), §§ LDC itself significantly compromise will recog nized First Amendment protections,” and III. AND JURISDICTION STANDING may we therefore entertain a facial chal lenge. City Angeles Council Los appellees Both have standing to Vincent, Taxpayers 789, 801, challenge U.S. Ordinance 99-51. order (1984); standing, plaintiff have 80 L.Ed.2d 772 prove must (1) injury it has sustained an Lakewood v. legally Publ’g “of a Plain Dealer interest;” Co., 750, 757, protected a “causal connec (1988). tion injury Further, between the [exists] and the L.Ed.2d 771 the fact that (3) of;” complained conduct injury Café Erotica and primar We Dare to Bare capable being by of redressed the court. ily engage in advertising does Lujan Wildlife, See v. 504 not prevent us from considering their fa Defenders of 555, 560-61, 2130, U.S. 112 S.Ct. 119 Metromedia, cial challenges. See Inc. v. (1992) (citations omitted); L.Ed.2d 351 490, City 11, Diego, San 453 U.S. 505 n. of Adver., Granite State Outdoor 351 F.3d (1981). 2882, 101 S.Ct. 69 L.Ed.2d 800 (11th Cir.2003). 1112, Moreover, 1116

plaintiffs injury must be “concrete and IV. STANDARD OF REVIEW imminent, particularized, and actual or conjectural hypothetical.” granting We review orders sum Lujan, 504 (citations 560, at 112 mary judgment U.S. S.Ct. 2130 City omit de novo. See Joel v. ted). (11th Orlando, provisions 1353, Pursuant to various of St. 232 F.3d 1357 Cir. of 1282 au- regulation challenged is whether of lower

2000).10 decisions review alsoWe in advance speech of suppression thorizes constitutionality of addressing the courts “prior re- Although expression”). of its Id. novo. de ordinances [,] per se unconstitutional are not straints a bear[s] ... restraint any system prior ANALYSIS PRIOR RESTRAINT V. its constitution- against heavy presumption challenged por analyze certain We Promotions, validity.” al Southeastern prior re 99-51 under of Ordinance tions 546, 558, Conrad, 95 S.Ct. 420 U.S. Ltd. v. content- under analysis and others straint (1975). Accordingly, 1239, 448 43 L.Ed.2d re prior with start analysis. We based 99- consider whether Ordinance we must holding in this our analysis because straint prior restraint. impermissible an 51 is for content- potential highlights section (1) ensure must Prior restraints 99- Ordinance decisionmaking under based within are made decisions permitting challenge, we a facial analyzing 51. When FW/PBS, Inc. period, see time specified a See as written. analyze the statute must 215, Dallas, 110 493 U.S. City v. (11th Dean, 1495, 1501 29 F.3d v. Redner (1990) 596, 107 (plurality L.Ed.2d 603 S.Ct. Cir.1994). 59, Freedman, at 380 U.S. (citing opinion) speech exists restraint on prior A (2) “unbri 734); avoid and must S.Ct. 85 deny access to can government “when the govern hands of a in the dled discretion” expres expression before a forum for 225-26, 110 See id. ment official. Frandsen, United States 757, sion occurs.” Lakewood, 486 (quoting 596 Cir.2000). (11th 1231, 1236-37 212 F.3d Lingerie, 2138); Lady see also J. 108 S.Ct. permit prior 1358, requires Jacksonville, 176 F.3d Ordinance 99-51 Inc. v. billboard,11thereby Cir.1999) mak (11th any (“licensing new schemes erecting 1361 advance discretion commonly on two defects: ing it a contain restraint Against delay”). Café opportunity v. Rock See Ward its occurrence. 5, 781, that Ordinance Racism, n. 109 S.Ct. court found 795 district 491 U.S. (for (1989) After requirements. of these prior lacked both 2746, 661 105 L.Ed.2d that the first re analysis, we find careful question relevant analysis, “[t]he restraint goes hand-in-hand construction summary judgment new party is entitled to 10. A speech. Not all resulting suppression to in- depositions, answers pleadings, "if the file, billboards, together terrogatories, existing and admissions speakers have access affidavits, any, that there is if communicating with the show can be and other forms fact and genuine issue as to material "insufficient, no prohibitively inappropriate and judg- moving party is entitled that the Metromedia, U.S. at expensive.” P. Fed. R. Civ. matter of law.” ment as a like speakers, some 56(c); Family v. Pinellas also Focus on the see Erotica, effectively be silenced Café could Auth., F.3d Suncoast Transit See, County’s requirements. permitting Cir.2003). (11th on the rests The burden County Democratic e.g., Eu v. Francisco San of a moving absence party to demonstrate the Comm., n. Cent. fact, we will genuine of material issue ("[sjuch L.Ed.2d 271 from it all record and inferences construe prohibition coex [potentially] cannot blanket non-moving light the the most favorable to politi protection of with the ist constitutional party. id. at 1271-72. City Pap’s speech”); see also Erie cal of A.M., 277, 293, 146 120 County argues permit is that a 11. The may (2000) (noting "there 265 that L.Ed.2d sign and is required of new construction for banning of ex the means be cases in which message an exist- change the not needed message that it pression so interferes the prior circumventing re- ing sign, thereby message”). However, essentially the bans prevention of the straint concerns. 1283 satisfied; however, ty is as quirement above Administrator unduly delay could below, we also find that Ordi- discussed permitting process. However, Ordinance unconstitutionally un- grants nance 99-51 01-34 amends this section. See Coalition just in the hands of one bridled discretion Marijuana the Abolition Prohibi for government official. tion, 219 F.3d at (noting 1310 that a su perseding ordinance moots case to the REQUIREMENT A. # 1: FW/PBS extent that it challenged removes features TIME SUFFICIENT LIMITS FOR law). prior The Ordinance as ISSUING PERMITTING DECI- gives amended now Adminis SIONS thirty days trator to deny approve or “A scheme that fails set reason fully completed sign application and twen able time limits on the decisionmaker cre ty days notify applicant defi indefinitely ates the risk of suppressing Significantly, ciencies. if the application is permissible speech,” and therefore will not approved or thirty- denied within the FW/PBS, be tolerated. 493 day period, permit is deemed 596 (plurality opinion). satisfy To 7.00.01(C). § denied. See Ordinance 01-34 requirement, this an ordinance should con Administrator cannot de (1) tain procedural safeguards: two licens lay permitting process indefinitely, and ing officials required must be to make an applicant should receive a final denial (2) decisions,' judicial prompt prompt ninety days well within of its initial sub review must be available to correct errone Redner, mission. See 29 F.3d at 1500 Lady Lingerie, ous denials. J. 176 F.3d at (holding that a forty-five day restraint (citation omitted). Ordinance 99- reasonable, expressing agreement requirement satisfies the first FW/PBS with other federal courts that have found it procedural because contains both safe periods time long ninety days as as to be guards set forth above. reasonable); Fish, but Fly City see Inc. v. respect With to the first safe Beach, (11th Cocoa 337 F.3d guard licensing required officials be —that Cir.2003) (ordinance setting forth no real prompt to make decisions—Ordinance 99- unconstitutional). time limits deemed states, Ordinance 99-51 Applications Sign Permits shall also satisfies the sec- be denied, approved safeguard judicial Ad- ond “prompt re- —that ministrator, (14) days within fourteen respect view” be available. With to licens- of a fully completed applica- submittal schemes, ing requirement means If required tion. more information is provide the ordinance must prompt applicant from the complete order to judicial denial, permit review of a rather review of application, the fourteen judicial prompt than resolution. See Boss (14) day period run receipt shall from of Capital, Casselberry, Inc. v. that additional information. If ap- (11th Cir.1999). F.3d Ordi- plicant writing certifies in that the appli- requirement nance 99-51 satisfies this be- complete, day cation is the fourteen provides cause LDC 7.00.08 that an ad- period shall run from the [certification] may verse appealed decision be to the date. thirty days. Circuit Court within See id. 7.00.01(C). LDC judicial (finding “prompt require- review” specified

The Café district court was concerned ment met where ordinance that, requirements, under these licensing “may immediately Coun- decisions be 1284 324, Dist., 316, 122 534 U.S. Chicago Park by the Cir- right as a matter of

revieived Redner, (2002); 775, L.Ed.2d 783 151 Court”). cuit (without omitted) (citations at 1501 29 F.3d 2:# NO REQUIREMENT B. licensing guide FW/PBS to the standards adequate DISCRETION UNBRIDLED on the indi authority, depend cannot “[w]e enforcing the Ordi responsible for viduals satis 99-51 Although Ordinance that cures it of in a manner nance to do so we requirement, first fies the FW/PBS infirmities”). constitutional an unconsti is 99-51 find that Ordinance the discre because restraint prior tutional defi specific and 99-51 lacks Ordinance County Administrator to the grants tion it County on the Ad statutory checks nite boundaries. beyond permissible extends discretion, thereby impermis- ministrator’s Birmingham, City Shuttlesworth for potential the content- sibly creating 935, 22 147, 150-51, 89 S.Ct. U.S. 394 99-51 Ordinance discrimination. based (“a (1969) subjecting the law 162 L.Ed.2d flaws as same constitutional contains the to freedoms First Amendment exercise of City down Lake struck the ordinance license, without of a prior restraint Co., Publ’g 486 v. Plain Dealer wood narrow, standards objective, and definite 2138, L.Ed.2d 771 authority, is uncon licensing guide the (1988). Lakewood, Supreme Court York, stitutional”); v. New Saia the ordinance itself that “the face of noted L.Ed. 1574 mayor’s on the explicit no limits contains (ordinance because facially invalid found Indeed, in the law as nothing discretion. unlimit was of decision-maker discretion mayor to do more requires the written (or Fish, Inc., ed); at 1313 Fly 337 F.3d ‘it is not make the than statement as unconstitutional struck down dinance ap denying permit interest’ when public per it the limits “exceed[ed] because Id. at 108 S.Ct. 2138. plication.” ”); Lady J. ‘ministerial missible discretion’ ordinance, Ordinance the Lakewood Like (“virtually at 1362 Lingerie, F.3d limits on the explicit no 99-51 contains beyond merely of discretion amount Rath discretion. Administrator’s suspect” and therefore is ministerial per er, simply states that Ordinance objec precise must be “[standards reviewed Ad mits shall be ”). tive “in accordance with ministrator issued Building LDC Code].” the [Standard its Ordinance County argues A review of the Standard 7.00.01.12 Administrator give not does 99- Building Code reveals Ordinance based on its reject sign discretion specific grounds under provide does not applicant need because content may deny a bill if the Administrator message. Even which the sign’s disclose grant however, Any such permit application. board accept argument, we were to an official our of unrestrained discretion to address Ordinance still fails regulating First Amend responsible for be “reason- there primary concern—that facially unconstitutional. for ment activities objective” grounds ably specific and and Constitution v. Atlanta Journal that are “nar- See permit application denying Aviation, 322 reasonable, Dept. Atlanta F.3d drawn, so and definite” rowly (en banc). (11th Cir.2003) sufficiently potential reduce as noted, has Supreme as the Court Thomas v. decisionmaking. content-based 7.00.01, §§ on-premise signs. LDC Additionally, “permit applications for on- premise signs in accordance with shall be 7.02.01. 7.02.00,” requirements which forth Part sets feet, impermissibly fa- thirty-two square requires that St. Johns Coun- Constitution criteria to insure that messages neutral vors commercial over non-com- ty “establish the is not based on licensing decision must first determine mercial ones. We speech being viewpoint of the content or analytical appropriate framework to 760, Lakewood, 486 U.S. considered.” considering when the constitutionali- apply criteria should be 2138. Such 108 S.Ct. restricting ty regulations non-commer- County’s included within the expressly speech placed cial on billboards. Ordinance, spe- and should set forth regulation of billboards is controlled grounds under which cific content-neutral Metromedia, by as “the law billboards” See, e.g., sign permit may be denied. a Metromedia, “a law unto itself.” Thomas, 322, 122 534 U.S. at 501, 2882; Ackerley U.S. at 101 S.Ct. see listing an ordinance thirteen (upholding Krochalis, 108 F.3d Communications permit ap- under which a specific grounds (9th Cir.1997) (“Metromedia 1095, 1099 denied, may none of which plication be regulation continues to control the of bill- anything speaker to with what a “has do boards”). Metromedia instructs courts to might say”).13 analytical

employ one of two distinct AMEND- APPLICABLE FIRST VI. frameworks, depending on whether the re- FOR CON- MENT FRAMEWORK or striction is of commercial noncommer- TENT BASED ANALYSIS Metromedia, 453 speech. cial 504-05, 7.03.01, S.Ct. 2882.14 Ordinance now consider whether We message signs” distinguishes between commercial “political which limits Thomas, upheld type Atlanta Journal Supreme Court a lar of content. See also Constitution, ("The whereby object 322 F.3d at 1311 offi- permitting scheme "the of the (as administering by charged the Plan permit system plainly indicated cial denial) by ac- grounds permit have clear standards which to permissible is not should for Perhaps cept reject [permit] request.... particular a or a to exclude communication of first-come, content, system, lottery sys- multiple a a uses of first-served but to coordinate tem, system [applicant] is space, preservation or a in which each to assure of ... limited facilities, dangerous, percentage available prevent [mediums limited to a uses that are unlawful, appropriate expression] would be vehicles impermissible ... and to assure or limiting We leave accountability damage by for the official’s discretion. caused financial Thomas, safeguards of the De- [applicant].” 534 U.S. at the intricacies added). ”). partment. ... (emphasis The ordi- 122 S.Ct. 775 grounds numbered un- nance set forth eleven denied, permit a be includ- purely der which could respect on com 14. With to restrictions ing: application permit contains a ap "the speech, plurality mercial the Metromedia misrepresentation,” "(1) falsehood or material plied four-part a The First Amend test: required applicant "the has not tendered the speech only protects commercial if that ment fee,” application applicant ... "the has activity and is not speech concerns lawful prior damaged property ... pro [for occasions misleading. otherwise A restriction on granted],” (2) permit and "the use which was speech is valid if it tected commercial activity applicant governmen intended would implement or seeks to substantial interest, interest, danger (3) present to the health directly an unreasonable advances tal public.” safety applicant necessary ... of the or than reaches no further objective.” accomplish given at 319 n. 122 S.Ct. 775. In the instant Metrome Id. case, dia, adopt (quoting similar con- 101 S.Ct. 2882 should 453 U.S. at Corp. & Elec. v. Public bases for which the Ad- Central Hudson Gas tent-neutral York, may deny permit, New so that it is Serv. Comm'n ministrator 65 L.Ed.2d 341 object permitting that the scheme clear (1980)). particu- exclude communication of a is not to 1286 Because the Metromedia 101 2882.15 thereby taking this speech,

noncommercial billboards,” controls “the law of of decision regulations realm of out of the case analytical framework em- apply we will the speech. commercial purely plurality.16 by the Metromedia ployed on placed respect to restrictions With with County argues Consistent the speech, noncommercial Metromedia^ a 99-51 is to we first ask whether Ordinance be confined inquiry that our should time, valid, place, and content-neutral discriminates based its Ordinance whether em regulation. This is the test striking por- the manner In down viewpoint. In district court.17 ployed that the Café Diego’s sign ordinance tion of San constitutional, time, place, a order to be over noncommercial favored commercial regulation may manner not be based however, plurality the Metromedia speech, regulated speech, content of the strictly viewpoint- upon the rejected a explicitly a narrowly sig tailored to serve that the First must be analysis, holding based interest, and must governmental nificant only prevents govern- Amendment ample alternative channels for open differ- leave distinguishing ment from between information. See communication viewpoints distinguishing but also from ent Racism, 791, at Against 491 U.S. 109 categories types of Rock between broad Metromedia, 519, If regulation at 2746.18 is deemed 453 U.S. speech. See However, (1968). cannot be v. this' framework In Consolidated Edison Co. Public Ser 530, 2326, Comm’n, applied 100 S.Ct Ordinance 99-51. O’Brien in vice (1980), Supreme 65 L.Ed.2d 319 Court volved a law that “on its face deals with declared, hostility First Amendment’s "[t]he having speech,” conduct no connection regulation only extends not to content-based Metromedia dealt with "the law of bill while viewpoints, particular but to restrictions on O’Brien, 375, Compare boards.” 391 U.S. at prohibition public an also to discussion of added) (emphasis with Me 88 S.Ct. 1673 matter, general topic. First entire As ‘the tromedia, 501, U.S. at S.Ct. 2882. As 453 101 government means that has no Amendment noted, recently gener O’Brien has this Court power expression to restrict because of its only "evaluating] reg ally applied when been ideas, matter, subject message, its or its its expressive ulations of that conduct —conduct " Edison, 537, 447 at content.' Consol. U.S. 'speech' 'nonspeech' contains both ele language, 2326. Based on this 100 S.Ct. ments,” dancing. Lady as nude J. such City Douglasville, County's reliance on Messer O’Brien, Lingerie, (citing at 1364 391 F.3d , (11th Cir.1992), F.2d 1505 Ga. 1673). U.S. at 88 S.Ct. case, misplaced. the sole issue was regulation allowing "whether a onsite non County v. 17. The district court in St. Johns signs denying while offsite non commercial Florida, time, applied Erotica Inc. first Café constitutionally would be analysis, place, but then found and manner Messer, (em permissible.” 975 F.2d at 1509 singled po- out that because Ordinance 99-51 added). type phasis Because the treatment, different litical whether onsite or offsite issue was same justify disparate County would have to noncommercial), (noncommercial vs. in con scrutiny standard. treatment under strict sidering whether the ordinance was content- analytical We believe this is the correct based, court considered whether framework. case, viewpoint discrimination existed. This however, deals with discrimination between Racism, Against regulated 18. In Rock con- messages, commercial and noncommercial open performers, was to all was cert venue viewpoint analysis only part making level, regulated to control its noise and was inquiry. content-based forum, thereby requiring public deemed time, analysis place, regula- as a and manner County argues proper 16. The that the test is Racism, O'Brien, Against U.S. at tion. Rock applied in United States v. S.Ct. 2746. U.S. 88 S.Ct. 20 L.Ed.2d 672 content-based, however, County’s argument, the Ordi- inquiry our be Under additional, an exacting, apply simply provides super- as we then nance comes more Edison, 447 scrutiny. provision regarding “political See Consol. fluous mes- strict 2326; One World sage signs.” Beach, City v. Miami Family Now One Cir.1999). (11th Un County’s interpreta 175 F.3d While government deference, must scrutiny, the der strict tion is entitled to Southlake narrowly is tai regulation Morrow, that the show 112 F.3d Prop. Assocs. v. state interest. compelling (11th lored to serve Cir.1997), we need Now, Family 175 F.3d World One One County’s interpretation defer to the when 1286. on a interpretation permissi that is “based of the ordinance.” Id. ble construction Thus, we must now determine However, County’s interpretation ef 99-51 is content-based. whether Ordinance fectively by the Ordinance com rewrites discriminating held that Metromedia pletely disregarding certain Ordinance always messages is not among political provisions and is flawed for several addi to be deemed for an ordinance required First, County disre tional reasons. Metromedia, 453 U.S. content-based. See gards plain fact that the Ordinance Rather, discrimi 101 S.Ct. 2882. thirty- “political message signs” limits messages in favor commercial nating square Significantly, two feet. Ordinance ones, regard without to the political over message signs” as “political 99-51 defines messages conveyed, is also content- actual “\d\ny Sign containing a non-commercial id. at based discrimination. See opinion message or endorsement and not inquiry 2882. Our therefore be containing message,” a commercial which fact comes whether Ordinance carry all encapsulates signs its terms messages political over favors message, and then ing a non-commercial ones. that signs restricts such to sizes far below DISTINCTION FAVORING COM- VII. Gosman, In re allowed for billboards. See OVER NON-COM-

MERCIAL (Bankr.S.D.Fla.2002) 282 B.R. IS CON- MERCIAL SPEECH (“ things ‘Any’ does not refer certain TENT-BASED ‘Any’ ‘every’ means and not others. unlimited.”); LDC ‘all.’ It is see also County argues that the Ordi- St. Johns Further, the definition of “bill 12.00.00. does not favor commercial nance no mention of “non-commer board” makes its political messages over because under signs. cial” 12.00.00. LDC (defining § 12.01.00 “bill- reading of LDC disregards boards”), County’s interpretation any speech, including political If the of the Ordinance.20 plain language on billboards.19 messages, placed can be speech, 'political message' its size "po- contains But note that under Ordinance larger message signs” thirty-two square can be no than On litical feet. must be limited feet, thirty-two square hand, be while billboards can County's interpre- the other [under See LDC large square as 560 feet. as on-premise off-premise billboards tation] 7.03.01(L), 7.01.03(A). §§ political also apparently include can large speech, as and could be as hesitated to 20. The Café district court also explanation for .. . offers no feet. The containing uphold such internal an ordinance Florida, Inc. Erotica this confusion.” Café inconsistencies, stating ... that "the Code County, v. CV-J-21- St. Johns No. 98-005597 in that if the creates an internal confusion determines Administrator provide as to displayed com- such a manner political and County truly intended equal footing, visibility abutting from the messages to be clear readable mercial regulated not have right-of-way during daylight would hours.” road separate- message signs” “political size of minimum allowable between the space The cannot be ly. separate size limitation right-of-way generally is billboard and the superfluous. This conclusion ignored as feet, up six hundred fifteen but it can be interpre- supported by multiple canons A along highways. feet certain review See, Nat’l Bank e.g., tation. Connecticut billboards reveals that this Café Erotica’s Germain, 249, 253, 112 corpo display requirement means (“courts 1146, 117 L.Ed.2d 391 complete legal promi ration’s name must of statutes interpretations should disfavor facing. See nently appear on the billboard language superfluous”); that render Unit- 7.01.04(E)6. 7.01.04(A), §§ a LDC Such Louwsma, 970 F.2d ed States v. requirement makes sense for commercial (11th Cir.1992) (“a statute precisely drawn messages, political not for ones. Un but subject a controls dealing specific with County’s interpretation der the of Ordi covering generalized a a more over statute message sign displaying nance the spectrum”). “Vote for John Smith” would also have Second, County’s interpretation, the the words Erotica We Dare include “Café / purely political which would allow mes Toys Exit to Bare Adult Great Food / / / billboards, in sages displayed to be on is an print. Inc.” similar bold Such 7.03.01(L). § consistent with LDC Section interpretation is inconsistent with the Su 7.03.01(L) entirety, “political in its states that “an preme Court’s direction author’s message signs thirty-two limited to [are] anonymous ... an decision to remain is (32) feet, square except those in residential aspect speech protected of the freedom of which shall not exceed six districts by McIntyre v. the First Amendment.” added). If the square (emphasis feet.” Comm’n, Elections 514 U.S. Ohio County actually intended for billboards to 341-42, L.Ed.2d 426 County carry political messages, the would (1995). However, am we should construe excep presumably have included a second biguities a manner that avoids constitu stating, except tion “and those on bill questions. Prop. tional As See Southlake square boards which shall not exceed 378 socs., 112 F.3d at 1119. supported by feet.” This inference the expressio maxim unius est exclusio alteri- Finally, County’s interpretation the us, “expressing one item of an associated gives the Ordinance 99-51 Administrator un group or series excludes another left power unbridled to discriminate between Inc. v. mentioned.” See Chevron U.S.A. political messages as he sees fit. On the Echazabal, 73, 80, 122 hand, County political one the believes (2002) (quoting 153 L.Ed.2d 82 United messages may displayed in fact be on bill- Vonn, 55, 65, 122 States v. hand, County boards. the the On other (2002)). 1043, 152L.Ed.2d 90 “political message also concedes that carry

Third, signs” greater size restrictions and County’s interpretation the can- 7.01.03(G), “[a]ny Sign containing a § are defined as not be reconciled with LDC states, opinion non-commercial or endorsement which ... within billboards “[a]ll message containing ... and not County displayed shall have on message.” (emphasis information 12.01.00 [ them name LDC ] [o]wner’s HTS, 4, 2002) (M.D.Fla. (order granting summary judgment). Dec.

added). sign category, which in provisions appropriate two these With sign’s handy tool turn determines the allowable size County has created place, the Further, content. Pre- and location. while it is true that discriminating based on permit application require Administrator dis- does not sumably, County if the likely message, regarding proposed information mes- applicant’s agrees with sage, can often infer the con- “political can utilize its then the on the nature of the thereby applicant’s restrict tent based message sign” tool case, example, feet. Such a business. there thirty-two entirely permissible long history is a of conflict between Café would be restriction County. Erotica and Johns as written. See LDC St. under Ordinance hand, If, permit Ero- application the other submitted Café 12.01.00. applica- simply reviews an tica could be denied because of the County Administrator perceived danger sign’s possible po- of the organization agrees tion from an he litical of the undesira- message then the can invoke because ideologically, bility applicant’s definition of “bill- business—adult en- seemingly its inclusive particular political discretion-checking tertainment. Without boards” and allow prom- guidelines, possibility much there is a distinct message displayed to be more County County can that the could decline to issue Café inently.21 way, In this See, permit Erotica a based on content. effectively political discriminate between Lakewood, e.g., at solely upon political con- messages based (a tent, licensing scheme where “the County which the cannot do absent S.Ct. 2138 Fish, Fly necessarily licensor does not view the text compelling reasons. See to but can Against spoken, Rock Rac- of the words about be (quoting F.3d at 1306 2746) (a ism, or probable law measure their content view- already ... is speech point by speech uttered “suppresses protected that because judicial sufficiently threatening it con- to invite disagreement message with the omitted). concern.”) (internal Amendment, ... the First citations veys violates compelling absent some state interest that Ordinance 99- Having determined enforcement”). its distinguish in fact based on con- 51 does mes- by allowing tent —both commercial County The contends that the Adminis- sages displayed prominently to be more given opportunity trator is never messages by giving than and political political a contains determine whether the unchecked abili- permit application does Administrator speech because the mes- ty political to discriminate between require regarding information the mes- However, Metromedia or- sages, infor- we now turn to sage. needs minimum, whether such restrictions type at a der to determine regarding, mation constitutional.22 message in order to determine are nevertheless proposed provi- that the 22. The district court also found We note that Billboards are defined as bringing appeals underscores signs thirty-two sion for "over feet in size decision- very possibility of content-based off-premise outdoor adver- real used for [are] making states that case tising display,” they because it and also include on- message pro- or content of the premise signs square feet. "where the that exceed 300 permit,” posed sign denial of the "Advertising Message” affected the An LDC 12.01.00. justifying the burden of must bear defined to include not commercial is very such a enactment of messages, "political copy intended to the denial. but also possibility of provision appears to admit the directly indirectly promote a candidate or or decisionmaking, which is the content-based LDC 12.01.00. issue.” may on-site prohibited billboards be while APPLIED METROMEDIA VIII. billboards are not. Id. commercial Metromedia, the United States (applying four-part 101 S.Ct. 2882 Central Diego’s struck down San Supreme Court commercial Hudson test for restrictions on banning the erection generally ordinance Second, speech). the Metromedia Court disp advertising off-premise outdoor portion Diego down the of the San struck The ordi lays,23 including billboards. display- ordinance banned billboards gen exceptions two to the provided nance political messages. The Court held: ing signs24 signs prohibition: eral onsite categ speech recent commercial cases [O]ur specified twelve falling within one of consistently have accorded noncommer adver onsite commercial ories.25 protec greater degree cial but offsite com permitted, tisements were speech. than commercial Die tion San advertising political messages mercial effectively judgment, by inverts this generally go forbidden. on billboards were affording greater degree protection on outdoor was The actual restriction by defined reference to the structural to commercial than to noncommercial sign, but also characteristics speech.... The use of onsite billboards sign’s Specifical reference to the content. carry messages commercial related ly, regulation only applied “perma premises the commercial use of the is ... display nent structure used for the freely permitted, but the use of other a commercial or other advertisement to [ ] carry wise identical billboards to non public.” Id. at 101 S.Ct. 2882. messages generally pro Companies engaged in the of out business explain how city hibited. The does not advertising challenged Diego door the San why noncommercial billboards located facially ordinance as invalid. places where commercial billboards permitted are more threaten would be The Metromedia Court made two dis- First, ing driving to safe or would detract rulings. respect tinct to the beauty city. more from the of the Inso placed purely speech, limits on commercial all, city at the Court ruled that off-site commercial far as the tolerates billboards juris- premises; signs advertising goods real concern of our First Amendment such or Alabama, prudence. See Thornhill v. produced manufactured or or services ren- 88, 97, 736, U.S. 60 S.Ct. 84 L.Ed. 1093 premises upon signs dered on the which such (1940). Metromedia, placed.” are 453 U.S. at 2882. 101 S.Ct. Diego generally prohib 23. The ordinance San (1) following signs: any sign identify ited specific categories exempted 25.The from the use, ing facility or service which is not prohibition government signs; included: (2) premises; any sign identify located on the signs public stops; signs at located bus manu- ing product produced, which is not sold or factured, transported, or stored within the premises; on the and manufactured city, advertising purposes; if not used for sign product, which advertises service or event, plaques; religious commemorative historical activity, person, institution or business malls; conducted, sold, symbols; signs shopping within which occurs or is manufac tured, signs; produced signs public and or offered elsewhere than on sale and for lease vehicles; time, premises signs depicting where such is located. Me commercial tromedia, news; 453 U.S. at 494 n. 101 S.Ct. temperature, temporary, approved and 2882. signs; off-premises, directional subdivision signs. temporary political campaign and signs 24. Onsite are defined under the ordi- Metromedia, 494-95, 453 U.S. at 101 S.Ct. "designating the nance as those name of the 2882. occupant premises upon owner or signs placed, identifying which such are narrowly that are tailored to further to limit their content to ment it cannot choose Metromedia, messages. those interests. See 453 U.S. 2882; at see also Consol. Metromedia, at Edison, 2326. County’s goals protect stated are preferences impermissible The same safety and aesthetic interests of its found unconstitu Supreme that the Court County argues citizens. The that its Ordi- present tional in Metromedia are also greater nance is of no restraint on here, In in a different form. Me- but necessary than inter- protect those tromedia, provision struck down al safety goals ests. The and aesthetics billboards, but lowed all onsite commercial However, are no doubt “substantial.”26 completely banned similar noncom almost may justified for while size limitations be The instant case involves a signs. mercial aesthetics, safety all based on preference, but in similar unconstitutional justify allowing these interests cannot bill- greater form of size restrictions up square boards to be built to 560 feet com messages noncommercial vis-á-vis thirty- allowing while a maximum of mercial ones. While Ordinance 99-51 does political message signs. two feet for complete political involve a ban on not findings The Ordinance contains no of fact neither did the Metromedia ordi speech, suggesting political speech distracts nance, provided exemptions as it several messages more than commercial motorists requirements for cer permitting from the political signs or that are more aesthetical- as in speech. tain noncommercial Just ly displeasing than commercial advertise- Metromedia, [County] may con “the short, “safety” ments. and “aesthetics” that the communication of commer clude truly are not furthered an ordinance concerning goods cial information and ser small, “safe,” visually that allows one particular with a site is of vices connected adja- political sign placed to be pleasant than the communication of greater value “unsafe,” aesthetically large, cent to a messages.” noncommercial Id. displeasing commercial billboard. By limiting political the size of S.Ct. 2882. messages roughly that of commer 1/17 County’s argument also find We un- ones, precisely County what the cial that is in Me- persuasive for the reasons stated preference done. Because of its has tromedia, declared, “by allowing which speech, commercial the Metromedia Court to use bill- commercial establishments Diego down the San ordinance as struck products and ser- boards to advertise on its face. See Metrome unconstitutional offer, city necessarily has they vices dia, at 2882. We 453 U.S. inter- conceded that some communicative same, County can must do the unless the ests, advertising, e.g., onsite scrutiny. satisfy requirements of strict stronger competing than its interests are safety. It has in esthetics and traffic nev-

Because Ordinance 99-51 discriminates banned all noncommercial in favor of com- ertheless against political speech Id. at specifically excepted.” those provide except must speech, mercial city of San 101 S.Ct. 2882. Like the disparate reasons for this treat- compelling we find that Supreme 101 S.Ct. 2882. Because 26. The Court in Metromedia ruled tailored, narrowly doubt that we that there could not be "substantial Ordinance 99-51 is safety ap- goals and the [of] the twin traffic whether the interests of need not determine city govern- pearance are substantial [ ] "compelling.” safety and aesthetics are Metromedia, goals.” 507- mental (order 2002) summary granting that Dec. County has conceded Diego, Johns St. recog- court judgment). number of billboards The district also allowing a certain requires aesthetics law it to outweighs its interests nized that Florida sever however, com favors safety; of the Ordinance that it any provisions ones messages political over unconstitutional, mercial allowing while valid finds dis messages to be allowing commercial stand, portions problematic but if This amounts prominently. played more provisions distinguished “can be and clear- preference for com unconstitutional to an from the remainder. See ly separated” political speech. over mercial Beach, Smyrna New Lysaght 18, 101 2882. The n. id. (Fla.1964). 869, 870 159 So.2d goals simply by County can achieve its inappro also find that severance is We po messages, that all whether mandating The interests of federalism priate. commercial, litical be limited to the comity dictate conservatism to federal Edison, 447 U.S. same size. See Consol. imposing interpretative their courts 11, 100 at 542 n. S.Ct. 2326. statutes. See National Ad views on state Because we find that Ordinance Niagara, 942 F.2d ver. Co. v. Town of makes unconstitutional content-based dis (2d Cir.1991). agree with the We tinctions, we need not consider whether County provision separately regu that the alternative channels are available for lating “political message signs” easily Edison, 447 regulated speech. See Consol. However, just severable. severance of 10, 100 U.S. at 541 n. S.Ct. 2326. provision this one will not address our concerns with the Administrator’s unfet IX. THE DISTRICT SEVERANCE: Therefore, we affirm the tered discretion. COURT PROPERLY REFUSED striking courts’ decision in down district TO SEVER THE POLITICAL County sign the entire St. Johns Ordi MESSAGE PROVISIONS nance, codified as Article VII the St. contains a sever- Ordinance 99-51 Johns LDC. However, ability provision. the Café dis trict that it could not sever the court ruled X. CONCLUSION provisions unconstitutional of Ordinance ruling We reverse the district courts’ a workable 99-51 and still be left with § facial- 7.00.0127and 7.00.0828are statute. The district court noted the two ly affirm unconstitutional. We the district stake, that “the competing policies at ruling courts’ 7.03.0129of Ordinance con every Court must reasonable make facially 99-51 is unconstitutional and can- it from struction the Ordinance to save not be severed from the rest of Article time, VII unconstitutionality; at the same of lack the LDC. We also hold that the [be Court will not an ordinance re-write specific guidelines needed to limit the dis- cause this a that is within the is] function County cretion of the Administrator cre- County.” Erotica province Café Florida, prior an restraint on County, Inc. v. No. 98- ates unconstitutional St. Johns (M.D.Fla. CV-J-21-HTS, speech. Setting 29.Setting requirements "special 27. the time limits in which St. forth the forth deny County approve sign a including limiting Johns must signs,” "political mes- use permit. sage signs” thirty-two square generally feet square feet in residential districts. and six Describing appeals process and time challenging permit limits for a denial. Finding inappropriate laterally severance under which newspapers place could circumstances, city we strike down Arti- newsracks on only these streets and re quired in provide cle VII of the St. Johns LDC its him to reason for denials, entirety. find impermissible Because we Ordinance 99- was an prior re face, unconstitutional on its we straint need because it vested too much discre determine whether Ordinance 99-51 is un- tion with mayor. Id. at applied appellees. There, constitutional as to the 2142-46. the Supreme Court required city “that establish AFFIRMED in part, and REVERSED neutral criteria to insure that licensing part. in decision is not based on the content or viewpoint speech being considered.” KRAVITCH, Judge, concurring Circuit 760, 108 Id. at S.Ct. at 2146. in in part, dissenting part: Here, St. John’s has established majority The holds that the St. John’s neutral making criteria for licensing its County Ordinance runs afoul of the First decisions. The code is extensive and ways. Frist, Amendment in separate two number, size, regulates the and construc- the ordinance an unacceptable pri- creates tion signs. county The legitimate has a or restraint on speech placing too much state in regulating signs interest for traf- county in discretion administrators in fic, safety, reasons, and, and aesthetic accepting or rejecting sign licenses. Sec- thus, it can establish a licensing procedure ond, the ordinance favors commercial over limits the on these bases. See speech, thereby, non-commercial disfavor- Metromedia v. City Diego, San ing political speech. Although core I 490, 502-03, 2882, 2889-90, agree with legal standards announced (1981). addition, L.Ed.2d 800 In the coun- majority in I opinion, disagree, part, in ty provide administrator must a written application with the of these standards to decision, copy of requested, the his if the ordinance at issue here. Specifically, the decision then can appealed. be See view, my in the ordinance establishes suffi- § 7.00.07. Both of these factors distin- ciently explicit objective standards for guish County’s the St. John’s ordinance reviewing sign applications and thus does from challenged the one Lakewood. not vest administrators with unbridled dis- addition, cretion. the ordinance pro- majority determines that there is protection vides less for non-commercial potential for content-based discrimina- speech only regard on-premise regard tion with to political message signs Therefore, signs. I respectfully concur on-premise signs, and that this creates part majority’s with the holding. prior problem. Although restraint I agree that St. John’s makes an I. Prior Analysis Restraint impermissible distinction between com- states, As the majority correctly county mercial and non-commercial when may administrators not have I regulating on-premise signs, unbridled dis do not agree cretion to determine who can prior announce this is a restraint issue. their process receiving sign permit and non-commercial The detail, viewpoints. explained objective Lakewood v. based on fac- Co., 750, tors, fact, Publ’g judicial Plain Dealer 486 In open U.S. 108 and to review. 2138, (1988). clearly enough S.Ct. 100 L.Ed.2d 771 For the criteria are announced instance, Lakewood, City in the Su this court to rule on the substance of of preme city plan, Court determined that a the code based on the face of the ordi- mayor which allowed the to uni- determine nance. See Me political messages. sages over that coun-

Moreover, court has held this 513, tromedia, at number, at 453 U.S. the that address ty regulations However, disagree that the partly I signs are of outdoor 2895. and construction size The here does so. challenged State Outdoor Granite ordinance permissible. See Petersburg, county’s City majority that the ordi Inc. v. determines Advertising, of Cir.2003). (11th Fla., 1278, speech for two favors commercial 348 F.3d nance first, be- There, speech distinctions is limited to city political the also drew reasons: off-premise adver- square and than 32 feet but on-premise tween no more in ordinance larger the on tising. placed The distinction can be speech the second, to review city billboards; pro the examiner required the ordinance and any proposed sign determine posted speech being content from political hibits al- requirements, if it met the ordinance’s I sign. disagree “on-premise” on an the review city claimed that though the the County ordinance does the St. John’s n. 3. viewpoint. Id. not for was former, that it does the latter. agree but Nonetheless, that such the court found text of the point, plain the the On first did not based distinctions minimal content commer- permits both St. John’s ordinance impermissible prior provision the an make billboards, political messages on cial and The existence of a Id. restraint. large as 560 feet. which can be as itself, review, in did vest ad- not content regulates the size of bill- 7.01.03 Section unbridled be- ministrators with discretion to the and contains no reference boards objective based cause the review was 7.03.01, contrast, by reg- content. Section Here, we review a similar factors. That signs. use section does special ulates the ordi- procedure. Although regulation expands the apply not to billboards may infringe on first amendment nance may placed. political signs where be areas by making impermissible dis- protections states, part: in That section relevant speech, it does types tinctions between much dis- following Signs administrators with too shall be allowed The vest by this Signs cretion.1 other allowed addition to subject provisions the and are Code Based Distinctions II. Content and violation of these contained herein shall result in a violation of majority provisions John’s agree I with the that St. favor commercial mes- this Code.... County may not speech. advantaged majority pro- over non-commercial notes that the ordinance's 1. The Rather, ap- preference the provision is not content-neutral because establishes cess peal’s procedure required to make by making county speech bear for "core” 7.00.08. decisions. Section content-based initiating proof costs of the burden of states that: court if a denial is based on cases circuit message or content Second, case where message. the content of Freed- Sign proposed affected the denial of Supreme Maryland, Court re- man v. the cost of permit, the shall bear municipalities "bear the burden of quired initiating the case with the Circuit Court speech going suppress to court to must justifying also bear the burden and shall proof once in court.” bear burden FW/ cases, applicant other the denial. In all Dallas, PBS v. Circuit have the burden to initiate the shall (1990) (citing 107 L.Ed.2d 603 appeal, provided as law. Court Freedman, 51, 58-60, Although provision a content- demands (1965)). county L.Ed.2d 649 pri- analysis, impermissible it is not an based attempting likely to write its was most code First, is not Metromedia or restraint. there requirement. this Freedman meet is not violation because commercial Message Signs, L. Political limited to Q-PHARMA, INC., feet, Plaintiff-Appellee,

thirty-two square except those in residential districts which shall not ex- (6) square ceed six feet. The COMPANY, ANDREW JERGENS added). (Emphasis Defendant-Appellant. majority concludes that this section No. 03-1184. thirty-two limits political message signs to United Appeals, States Court of feet, square a size much smaller than the Federal Circuit. square permitted feet for billboards. ordinance, reading The most natural DECIDED: March 2004. however, to a interpreta- leads different Billboards, tion. large square as as 560

feet, may political contain commercial

messages § signs under 7.01.03. Other

bearing political messages are allowed in billboards,

addition but are limited to short, square feet under 7.03.01. political message signs provision political 7.03.01 does not limit the size of billboards,

messages simply permits but

signs other than billboards. If residents publicize po- St. John’s wish to views, they

litical can do so on a 560 foot billboard or on smaller

residential areas. point, agree

On the second I with the

majority that county’s ordinance favors speech political speech

commercial over Here,

regulating on-premise signs.

county restricts non-commercial and, permits

where it speech,

thereby, provides protection less to “core”

speech in violation of the Metromedia rule. reasons, part For the above I concur in Fed.Appx. See also 59 part majority and dissent in opin- ion.

Case Details

Case Name: Café Erotica of Florida, Inc. v. St. Johns County

Court Name: Court of Appeals for the Eleventh Circuit

Date Published: Feb 23, 2004

Citation: 360 F.3d 1274

Docket Number: 02-16718, 03-11385

Court Abbreviation: 11th Cir.