Donna J. Beaulieu is a practicing attorney with a law office in the City of Alabaster, Alabama, a suburban community about seventeen miles south of downtown Birmingham. Her office building is located in the central business district, also known as the B-5 zoning district, and faces U.S. Highway 31, the main commercial thoroughfare that runs through Alabaster’s downtown. Beaulieu has a permanent sign on the front of the building that says, “Donna J. Beaulieu, Attorney at Law.” The City issued her a permit for the sign in September of 2003.
This case does not involve that sign, at least not directly. It involves another sign that Beaulieu put up on the same property, a political sign urging support for her candidacy for a state judgeship. As a result of that additional sign, Beaulieu was served by the City of Alabaster’s code enforcement officer with written notice that she had violated the City’s sign ordinance, a notice which gave her ten days to correct the violation “to avoid any further legal action.” She sued, and this is the City’s appeal from the district court’s judgment in her favor. Before we set out the details of the sign ordinance, recount the procedural history of the case, and get into the legal issues, we need to set out the facts that led to the lawsuit.
I.
On April 2, 2004, Beaulieu qualified to run as a candidate for circuit judge in Shelby County, Alabama in the November 2, 2004 general election. She put a campaign sign on the sidewalk in front of her office. It was a stand-alone, upside-down “V”-shaped sign about six feet high and three feet wide with two smaller “Donna J. Beaulieu for Circuit Judge” signs on both sides of it. She did not apply for or obtain a permit for the sign.
On June 18, 2004, Brian Brandenberg of the Alabaster Police Department delivered a notice to Beaulieu’s office, informing her that the campaign sign was in violation of section 15.2(E)(1) of the City’s sign ordinance. As the City’s code enforcement officer, Brandenberg was “familiar” with the sign and zoning ordinances because “it [was his] job to enforce them.” The notice stated:
It has come to the attention of the city that your business is displaying a political sign on your property. This is in violation of the Sign Ordinance with the city of Alabaster. The Sign Ordinance states that political signs may only be displayed in a residential zoning district on property which is improved with a dwelling. This letter serves as a ten (10) calendar day notice to correct these things to avoid any further legal action.
Ten days after receiving that notice, Beau-lieu removed the campaign sign. She was never formally charged with a violation of the ordinance, and did not file an appeal with the Board of Adjustment.
Thereafter, Beaulieu’s husband and campaign manager, Henri N. Beaulieu, Jr., paid a visit to Alabaster City Hall to obtain a copy of the sign ordinance. While waiting for the copies, Mr. Beaulieu talked with Officer Brandenberg, who happened to be standing at the counter. Branden-berg told Mr. Beaulieu that his wife’s campaign signs were posted on trees throughout the city and needed to be removed because they violated the sign ordinance.
*1222 What else was said is disputed. According to Mr. Beaulieu’s affidavit, he asked Brandenberg if he would be breaking the law if he removed the “Donna J. Beaulieu, Attorney at Law” sign from the front of his wife’s office building and replaced it with a “Donna Beaulieu for Judge” sign of the same dimensions. Mr. Beaulieu’s affidavit states that Brandenberg told him that such a substitution would be a violation of the ordinance, and when he expressed the opinion that the ordinance was “un-constitutional, it’s content based” and that his wife would have to file a lawsuit to get an injunction, Brandenberg replied: “Get in line.” Brandenberg, on the other hand, states in his affidavit that he does not recall Mr. Beaulieu asking him specifically about substituting a campaign sign for the attorney-at-law sign already on the front of the building, but says that “I certainly did not tell him that a substituted message would not be allowed.”
II.
The procedural history of the case and our discussion of the district court’s decision will be easier to understand if we precede them with a detailed description of Alabaster’s sign and zoning ordinances.
Alabaster’s comprehensive zoning ordinance was enacted for the purpose of promoting “public health, safety, morals and general welfare.” See Alabaster, Ala., Zoning Ordinance 99-010, Art. II, § 1.0 (Sept. 21, 1999). It consists of twelve articles. See generally id. Article VI divides Alabaster into twenty zoning districts, one of which is the B-5 district or central business district. Id. Art. VI. Article III focuses on administrative procedures and zoning, while Article X deals with signs. Id. Arts. III, X.
On November 3, 2003, the Alabaster City Council adopted a sign ordinance, which amended Article III and Article X of the zoning ordinance. See Alabaster, Ala. Ordinance 03-010 (Nov. 3, 2003). The sign ordinance, which took effect on January 1, 2004, includes among its stated purposes: promoting aesthetics and pedestrian and traffic safety; reducing visual clutter; ensuring that residents are able to “have the opportunity to express their views on public issues through signs located at their residences”; and ensuring that “persons seeking housing in Alabaster can easily find available housing by allowing commercial real estate signs in locations and circumstances where other commercial signs are not allowed.” Id. §§ 1.1(4), (5), (9), (10), amending Article X of Ordinance 99-010. 1
The sign ordinance generally requires a permit from “the Building Official” before a sign is erected or altered. Id. § 2.1. Anyone seeking a permit must submit an application with a drawing showing, among other things, the location and dimensions of the sign. Id. § 2.2. The application must also be accompanied by a fee “as specified by the Building Official for each sign in accordance with this Ordinance.” Id. § 2.5. Within seven days of the submission of a completed application, the Building Official must either issue or deny the permit. Id. § 2.3. In the B-5 zoning district, where Beaulieu’s office is located, property owners or tenants may obtain a permit for one sign “per facing street” for “[bjusiness or other use.” Id. § 8.0(A)(1). The sign may be a “building wall sign, canopy sign, or projecting sign” and must not exceed a certain size. Id. §§ 8.0(A)(2), (3)(a)-(b).
*1223 The sign ordinance allows some types of signs, including temporary real estate signs and political campaign signs, to be erected without a permit subject to certain conditions. 2 Id. §§ 15.2(E), 15.3(F)(3). “Each commercial lot, building or tenant space may have one real estate ‘for sale’ or ‘for rent’ sign, provided such sign is located on the subject lot or premises” and does not exceed the size limitations. Id. § 15.3(F)(3). Real estate signs must be removed when the property is sold or rented. Id. This is what the ordinance says, in pertinent part, about political campaign signs:
The following signs shall be allowed, subject to the following conditions, but no sign permit shall be required for such signs:
E. Political campaign signs, subject to the following:
1. Political signs shall only be located in a residential zoning district on property which is improved with a dwelling.
Id. § 15.2(E)(1).
The sign ordinance also contains a section captioned “Substitution of Messages.” Id. § 12.0. It provides that any sign allowed under the ordinance “may contain, in lieu of any other message or copy, any lawful noncommercial message ... so long as said sign complies with the size, height, area and other requirements of this Ordinance.” Id.
If a person wishes to erect a sign that is not allowed in a particular zoning district, he may, after receiving approval from the Board of Adjustment, apply for a “special exception use.” See Ordinance 99-010, Art. III, § 3.2. The application, along with a $100 non-refundable fee, must be submitted to the Building Official at least eighteen days prior to the Board of Adjustment meeting at which the request is to be considered. Id. § 3.2(A).
A section of the sign ordinance captioned “Unlawful signs” requires signs to be maintained in sound structural condition. Ordinance 03-010 § 2.7. It authorizes the Building Official to inspect all signs and order the painting, repair, alteration, or removal of any sign that does not comply with the Building Code. Id. The owner of a sign or of the property on which it is located may appeal a removal *1224 order to the Board of Adjustment. Id. An appeal suspends enforcement of the order until the Board issues a ruling. Id. The ordinance also authorizes appeals from the denial of a “building permit” by the Building Official. Id. § 2.4. A provision in the zoning ordinance, captioned “Appeals From a Decision of the Board,” provides for appeals from decisions of the Board of Adjustment to the circuit court. See Ordinance 99-010, Art. III, § 3.5.
III.
On July 19, 2004, Beaulieu filed a complaint in the district court against the City of Alabaster, Mayor David Frings, City Council President Rick Walters, the City of Alabaster Police Department, and Officer Brandenberg. Because they all take the same position in this case, we will refer to the defendants collectively as “the City.”
Beaulieu’s complaint requested a declaratory judgment and injunctive relief pursuant to 28 U.S.C. §§ 2201, 2202. It challenged the sign ordinance under 42 U.S.C. § 1983, claiming that it was facially unconstitutional because: (1) it places an undue burden on free speech; (2) it is a content-based regulation because it favors commercial speech over non-commercial speech; (3) it is not justified by a compelling government interest; and (4) even if applied in a content-neutral fashion, “[i]t is not narrowly tailored to further a substantial governmental interest and ample alternative means for communicating the desired message do not exist.” The complaint also claimed that the sign ordinance was unconstitutional as applied to Beau-lieu because it violated her First Amendment right to free speech. 3 Following a hearing, the district court entered an order on July 26, 2004, denying preliminary injunctive relief.
Thereafter, the City filed its Brief in Opposition to Plaintiffs Claims for Declaratory and Injunctive Relief, in which it made a number of arguments. One was that Beaulieu’s claims were barred because she had never filed an appeal with the Board of Adjustment and therefore had failed to exhaust her state administrative remedies.
The City also argued on the merits that its sign ordinance was constitutional on its face and as applied to Beaulieu. In support of its position, the City submitted the affidavit of Steven Sims, the City’s Building Official. Sims gave his view that political signs are not banned from the B-5 zoning district but that property owners in that zone must obtain a permit for a political sign, as they would for most other signs. He said that the permit requirement applies equally to all signs regardless of their content and that permits are issued without regard to content. He noted that the sign ordinance does exempt some signs from the permit requirement, including political signs posted on property in a residential zoning district if that property has a dwelling on it.
During the bench trial on August 31, 2004, the City introduced the testimony of Dr. Eric Kelly, the drafter of the sign ordinance. Dr. Kelly agreed with Sims’ interpretation of the sign ordinance but conceded that the ordinance was unclear and “ought to be fixed.” As for section 12.0, he said that the intent was that the substitution message provision would “apply very broadly” and “would let someone take even a real estate sign and place a political message on it.” Kelly admitted *1225 “[t]hat would be sort of an unusual scenario,” though.
On September 24, 2004, the district court entered a final judgment in favor of Beaulieu.
Beaulieu v. City of Alabaster,
The court then addressed whether the two elements of a § 1983 action were present: “(1) whether the conduct complained of was committed by a person acting under color of state law; and (2) whether this conduct deprived a person of rights, privileges, or immunities secured by the Constitution or laws of the United States.”
Beaulieu,
With regard to the second element, the district court first decided that the ordinance was content-based and therefore subject to strict scrutiny.
See Beaulieu,
The district court next examined whether section 15.2(E)(1) violated Beaulieu’s First Amendment right to political expression by restricting political campaign signs in the B-5 zoning district.
Beaulieu,
Alternatively, the court concluded that section 15.2(E)(1) was a content-based restriction on political speech.
Beaulieu,
As for remedies, the district court enjoined the City from enforcing what it interpreted to be section 15.2(E)(l)’s restriction of political signs to residential property improved with a dwelling.
Beaulieu,
IV.
The City contends that the district court erred in finding that Beaulieu’s claims were ripe for review in federal court because, it says, she failed to exhaust her administrative remedies. Of course, we review questions of subject matter jurisdiction
de novo. Justice Cometh, Ltd. v. Lambert,
Specifically, the City argues that Beau-lieu’s claims are not ripe because she: (1) bypassed Alabaster’s administrative appeals process and failed to show how the appeals process would have harmed her; and (2) improperly relied on the statements of Officer Brandenberg to determine what the sign ordinance did and did not allow and failed to obtain a “conclusive response from someone with the knowledge and authority to speak for the City” regarding its ordinance.
See Digital Props., Inc. v. City of Plantation,
Beaulieu responds that under
Patsy v. Board of Regents of Florida,
Alternatively, Beaulieu contends that if she had applied for and had been given a permit for a campaign sign pursuant to the section 12.0 substitution provision, her First Amendment rights would have been harmed. Her reasoning is that sharing or replacing her “Attorney at Law” sign with a campaign sign would have caused her to suffer a loss of business advertising space. She also argues that she should not have been required to apply for a permit for a political sign since she would not have had been required to apply for one for a real estate sign.
The Supreme Court and this Court have held that there is no requirement that a plaintiff exhaust his administrative remedies before filing suit under § 1983.
Patsy,
Article III of the Constitution limits the jurisdiction of the federal courts to actual cases or controversies and requires us to consider whether a plaintiffs claims are ripe. U.S. Const. Art. III, § 2, cl. 1;
Nat’l Park Hospitality Ass’n v. Dep’t of Interior,
To determine whether a claim is ripe we must evaluate: (1) “the fitness of the issues for judicial decision”; and (2) “the hardship to the parties of withholding court consideration.”
Coal. for the Abolition of Marijuana Prohibition v. City of Atlanta,
Because this case involves an alleged violation of the First Amendment, our review of this suit’s ripeness is at its most permissive.
Digital Props.,
This case involves the broadest of First Amendment rights because it concerns the right of a political candidate to publicize her candidacy during the heat of a campaign.
McIntyre,
The City urges us to look to two ripeness cases in which this Court dismissed plaintiffs’ challenges to municipal ordinances because the lawsuits were filed before the municipal authorities had rejected the permit applications.
See National I,
Digital Properties had plans to open an adult book and video store in the City of Plantation, Florida, and entered into a contract to purchase a building.
Digital Props.,
We stated that even assuming that the “zoning scheme could potentially hamper Digital’s First Amendment rights,” there was no subject matter jurisdiction to decide whether it did, because Digital “did not pursue its claim with the requisite diligence to show that a mature case or controversy exists.”
Digital Props.,
In the other case, National Advertising, a billboard company, applied for permits to erect billboards in a commercial zoning district in the City of Miami.
National I,
We affirmed the district court’s grant of summary judgment to the City on ripeness grounds.
National I,
As for the second prong of the ripeness test, we found that National had failed to show that it would sustain undue hardship if the claim were not adjudicated.
National I,
Beaulieu’s situation is different from that of National and Digital, because Beaulieu had a lot more than a verbal statement from a clerk or a written notation a clerk made on a permit application.
Cf. National I,
Turning to the second prong, Beaulieu has also demonstrated that she would have sustained undue hardship if the district court had withheld adjudication of her claim. On this point we consider the situation of the plaintiffs in
Eaves,
Moreover, we found in
Eaves
that it was likely that had the plaintiffs violated the ordinance, the City would have enforced it against them.
Eaves,
Like the
Eaves
plaintiffs, Beaulieu had a “specific, serious, and plausible” intent and desire to engage in conduct that arguably would violate the ordinance.
See Local
*1231
2238,
The only thing that prevented the threatened harm was Beaulieu’s modification of her behavior to conform to the requirements of the ordinance.
See Local 2238,
Finally, there is one more reason why Beaulieu would have suffered substantial hardship if her claim had not been adjudicated sooner instead of later. She was a candidate for political office. Every day that went by without her political signs up was a lost day of political advertising for her. She sued while her campaign for office was ongoing. She got relief in the form of a permanent injunction before the election. If she had waited for more definitive word from the City, she would have lost the benefit of having her sign up during the latter part of her campaign. For all of these reasons, we conclude that Beaulieu’s claim satisfies both prongs of the ripeness test.
Y.
The City contends that, even if the claim was ripe for decision, the district court should have abstained on prudential grounds from deciding the case. We review only for abuse of discretion a district court’s decision whether to abstain.
Lops v. Lops,
The Supreme Court and this Court have held that federal courts should abstain from deciding a case when doing so would interfere with a state criminal proceeding or a state civil or administrative proceeding that is akin to a criminal one.
See, e.g., Middlesex County Ethics Comm. v. Garden State Bar Ass’n,
In the present case there are no state criminal, civil, or administrative proceedings underway. Any such proceedings ended when Beaulieu removed her campaign sign from the front of her office. Because there is no risk that a federal injunction would interfere with any pending state proceedings, the district court was not required to abstain from deciding the case.
*1232 VI.
Turning to the merits, the City contends that the district court erred in holding that section 15.2(E)(1) is a content-based restriction on speech that does not survive strict scrutiny. The City argues that the court should have deferred to its construction of the sign ordinance and under that construction, it is a content-neutral time, place, and manner regulation.
We “decide
de novo
any legal issues relating to the constitutionality of a city ordinance.”
Joel v. City of Orlando,
Under the City’s construction, the sign ordinance allows political signs to be erected in the B-5 zoning district (the central business district), where Beaulieu’s office is located, as long as a permit is first obtained for the signs. It argues that section 15.2(E)(1) does not ban political signs on B-5 property; instead, it exempts political signs from the permit requirement as long as they are posted on residential property. In other words, a person who lives in a residential area anywhere in the city may post a political sign on her property without a permit, but a person who owns an office building in the B-5 zoning district must obtain a permit before posting a political sign on that property.
The City asserts that there are two ways for a property owner or tenant to obtain a permit for a political sign in the B-5 zoning district. First, she may apply for a permit to substitute a political sign for her business sign pursuant to section 12.0, as long as the political sign conforms to “the size, height, area and other requirements of this [ordinance.” See §§ 8.0(A)(3)(b), 12.0. Second, she may apply for a permit to substitute a political sign for a temporary real estate sign pursuant to sections 12.0 and 15.3(F)(3). See § 15.3(F)(3). The City insists that it would issue a permit for a political sign without regard to the content of the message.
Although the City’s construction of section 15.2(E)(1) appears to be at odds with the plain language of that section, we will assume that it is a “permissible construction” for the purpose of analyzing the district court’s holding with respect to Beau-lieu’s facial challenge.
See Southlake Prop. Assocs.,
We begin our evaluation of the constitutionality of the sign ordinance with the analytical framework set out in our prior decisions.
See, e.g., Café Erotica of Fla., Inc. v. St. Johns County,
In determining whether the sign ordinance is content-based, we are bound by our decisions in
Dimmitt v. City of Clearwater,
More recently in
Solantic,
we struck down a sign ordinance that exempted from its regulations several types of signs, including government and religious flags.
The City would have us believe that its sign ordinance is content-neutral because the substitution clause allows “any sign ... [to] contain, in lieu of any other message or copy, any lawful noncommercial message.”
See
Ordinance 03-010, § 12.0. It urges us to apply
National Advertising Co. v. City of Miami,
Although a substitution clause may turn an otherwise content-based regulation into a content-neutral, constitutional one, that is not the case here. Even if political signs can be substituted for real estate signs in the City of Alabaster, they are still not treated equally. Under the City’s interpretation of its sign ordinance, a person who wants to post a real estate sign can simply post the sign on her property. But a person who wants to substitute a campaign sign for a real estate sign under section 12.0 must visit Alabaster City Hall, complete an application for the substitution, pay the permit fee, and wait at least a week for a response. See Ordinance 03-010, §§ 2.0-2.5,12.0.
In sum, under the sign ordinance it is easier, cheaper, and faster for Beaulieu to post a real estate sign than a campaign sign. Because political signs are subject to more regulatory burden than real estate signs, the sign ordinance discriminates against political speech in favor of commercial speech.
See Solantic,
Like the ordinances in
Dimmitt
and
Solantic,
the present sign ordinance cannot
*1234
survive strict scrutiny. The City’s interests in aesthetics and traffic safety are substantial but they are not compelling for present purposes.
See e.g., Members of the City Council of L.A. v. Taxpayers for Vincent,
Even if the City’s interests were compelling, the sign ordinance is not narrowly tailored. The ordinance abstractly recites its interests in aesthetics and traffic safety without explaining how the regulations further those interests generally, or how its discrimination in favor of real estate signs promotes those interests specifically.
See Solantic,
The sign ordinance’s exemption of real estate signs from the permit requirement may further the City’s interest in nurturing the real estate market, but it will not make the City of Alabaster shine more brightly or make it a safer place to drive or stroll.
See Solantic,
VII.
The district court’s decision is AFFIRMED.
Notes
. The record does not include an updated version of the zoning ordinance complete with the amendments from the sign ordinance. Unless otherwise noted, we will cite to the sections as they should appear when incorporated into Article X of the zoning ordinance as amended.
. The sign ordinance states that an “[a]pplication for a permit ... to erect a temporary sign ... shall be made to the Building Official,” and it requires that the application for a temporary sign shall include "the date on which the sign will be erected and the date when the sign shall be removed.” Id. § 2.2, (E). The City did not, however, argue to the district court that permits were required for temporary real estate signs. The district court, without any objection from the City that we can find, interpreted the sign ordinance as allowing temporary real estate signs- without a permit.
Likewise, in neither of its briefs to this Court did the City argue that the district court erred in its finding that the sign ordinance allowed temporary real estate signs without a permit. During oral argument we gave the City a number of opportunities to make that argument; instead of doing so, the City seemed to concede that the ordinance did allow temporary real estate signs without a permit. We will not force an argument on a party and assert for it a position it did not take in the district court or this Court.
See Irving v. Mazda Motor Corp.,
. Beaulieu's complaint contained other legal theories but she abandoned them before the district court entered its order.
. In
Bonner v. City of Prichard,